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HomeMy WebLinkAbout2001-97614 Benefits Claimant 01-10-25 Decision IN THE MATTER OF AN APPEAL BEFORE THE SUBCOMMITTEE OF THE JOINT INSURANCE REVIEW COMMITTEE REGARDING CLAIM #97614 CHAIR LORETTA MIKUS APPEARING FOR THE UNION MARK BARCLAY APPEARING FOR THE EMPLOYER HIROKO SAW AI CLAIM # 97614 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 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 CLAIM # 97614 2 4 Duties of the Committee 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 CLAIM # 97614 3 4 subcomrmttee 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 nnpartIal medIcal consultants shall be available to the subcomrmttee In an advIsory capacIty to provIde mformatIOn on the nature of specdic illnesses or dIsabIlItIes @ MembershIp on the subcomrmttee 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 subcomrmttee 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 subcomrmttee 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 # 97614 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 # 97614 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 CLAIM # 97614 7 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 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 CLAIM # 97614 8 Independent chaIr 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 L.M. has been employed by the Crown In the Right of Ontano SInce October 7 1975 Her home posItIOn IS "Group Leader" In government publIcatIOns, classIfied at the OAG9 level Her last day of work was September 5 1997 and she receIved short term sIck leave benefits untIl March 4 1998 Her applIcatIOn for Long Term Income ProtectIOn benefits (L TIP) dated January 16 1998 was demed by the Insurer and It IS her appeal of that demal that IS before me now On her applIcatIOn for benefits she descnbed her Illness as "fatIgue paIn In most muscles, headaches" Her physIcIan, Dr DIsenhaus, completed an AttendIng PhysIcIan's ImtIal Long Term DIsabIlIty Benefits Statement In whIch he noted that her symptoms first began to appear In Mayor June of 1997 and that she became dIsabled In September of that year His pnmary dIagnosIs was fibromyalgIa, wIth a secondary dIagnosIs of nght ulnar neuntIs He descnbed her as beIng ambulatory wIth mImmal functIOnal capacIty lImItatIOns She was, at the tIme, capable of lIght actI VI ty He felt she was unable to perform her own and any occupatIOn and that her condItIOn would contInue untIl "hopefully spnng /98" He also noted that he had referred her to an orthopedIc CLAIM # 97614 9 and a neurologIcal specIalIst. In February of 1998 Dr DIsenhaus responded to dIrect questIOns posed by the Insurer about the claimant. His letter read as follows ThIS report IS wntten In response to a letter of February 11 1998 by Jane Culp Claims AdJudIcator Toronto Group DIsabIlIty Claims, of Manu lIfe FInanCIal I wIll answer the questIOns as Ms Culp asked them. Please refer to her letter 1 L IS stable I e not ImproVIng or worsemng much. Her symptoms Include severe fatIgue wIth very lImIted exerCIse tolerance palpItatIOns when very tIred, fairly constant achIng In her neck, back, groInS, upper arms and antenor thIghs, hypersthesIa of neck, shoulders and Interscapular areas mght sweats, paraesthesIa of her nght forearm and 4-5 dIgItS, and, untIl recently weakness ofnght hand gnp depressed affect. PhysIcal findIngs on her last VISIt 13/01/98 Included a) these very tender tngger areas - 1 In each sternomastOId, 2 In each trapezIUs, 2 In each medIal scapular area, 1 In each tnceps, 1 In each bIsceps, 3 In each quadnceps, 2 In left calf b) normal nght gnp c) occasIOnal weepIness, d) slow langUId, paInful ambulatIOn. 2 In the attached photocopIes of tests done SInce her Illness became very dIsablIng - May 1996 - the only sIgmficant abnormalIty IS nght ulnar neuntIs I'm also IncludIng caples of consultatIOn reports as requested. 3 L has not been hospItalIsed for thIS Illness 4 Current treatment IS a mght splInt for nght forearm, Ultradol 300 mg BID B6 25 mg OD Effexor 37 5mg BID Imovane 7 5 mg HSW PRN regular physIOtherapy and use of TENS appartus In LIndsay therapeutIc pool exerCIses 5 tImes weekly She IS complIant wIth thIS regIme She gets a good bIt of paIn relIef from the above modalItIes, her mood IS slowly ImproVIng, but her fatIgue has plateaued, and has not changed In several months 5 I do not feel L IS well enough to attempt "occupatIOnal reIntegratIOn" She becomes so fatIgued by the dnve from her home to my office and then back home that she must lay down and cannot get up once she arnves back home She tned to do some office work VIa modem and computer as an expenment, bnefly In October 1997 but could not manage any work at all thIS way Any attempt at "occupatIOnal reIntegratIOn" wIll make her more III L would suffer Increased paIn and dIsabIlIty by engagIng In "occupatIOnal CLAIM # 97614 10 reIntegratIOn" now 6 L IS barely able to cope wIth her personal needs and some household chores She IS unable, due to paIn and fatIgue, to do any of her prevIOUS work actIvItIes See completed PhysIcal CapacItIes Form Included. 7 There are no workplace accommodatIOns that wIll permIt her safely to return to work at the present. I suspect thIS wIll be true for the Indefimte future 8 If a vocatIOnal assessment were to be attempted In a compassIOnate and canng manner and would Include all the parameters you have lIsted except "work hardenim!:", I would have no obJectIOn. Enclosed you wIll find the caples of my clImcal noted that were requested. If any translatIOns or clanficatIOns are needed, please contact me The PhysIcal CapacItIes form he referred to In hIS letter stated that the claimant could SIt, stand and walk for up to 3 hours a day However It was stated that she could not 11ft any weIght and could never do any keyboardIng, pushIng, pullIng, operate foot controls, clImb squat or crawl She could occasIOnally manage sImple graspIng, fine mampulatIOn, bendIng, reachIng above her shoulders and reachIng forward. Dr DIsenhaus Included In hIS report a copy of a VISIt by the claimant to the OutpatIent Department of the Toronto East General HospItal because of problems wIth her dIsturbed sleep patterns The report stated there no sIgmficant obstructIve sleep apnea and concluded as follows Mrs L M. has unrestoratIve sleep on the basIs offibromyalgIa wIthout concomItant sleep apnea or penod leg movements OngoIng therapy targeted at her fibromyalgIa holds the best promIse for ImproVIng her well beIng. Also Included In Dr DIsenhaus' report were the reports of Dr Gershon, an orthopedIc specIalIst and Dr Roussev a specIalIst In neurology and Internal medICIne Dr Gershon saw her In August of 1997 and, from hIS physIcal eXamInatIOn found the folloWIng She can walk a mIle She can clImb a flIght of stairs She can easIly get down Into a bathtub and out agaIn. She can easIly comb her hair She can almost take off a tIght Jar top Prolonged SIttIng hurts her low back. She commutes by car three hours each day She has been dOIng thIS for 2 1Iz years She has no problems bendIng over or CLAIM # 97614 11 pushIng a vacuum cleaner She can dress first thIng In the mormng. Dr Gershon noted that addItIOnal tests had been ordered and asked to be advIsed of the results He concluded wIth the folloWIng If It can be shown that there IS no orgamc dIagnosIs here (I thInk she IS tellIng us of vanous somatIzatIOns) then the problem can be approached at a dIfferent level Long and slow dIscussIOn wIth your patIent. Her back IS clearly orgamc and wIll persIst as long as she contInues her commutIng pattern. Will wnte to you when she phones for a progress report In about 2 or 3 weeks tIme SomatIzatIOn referred to In hIS letter IS a process whereby emotIOnal dysfunctIOn or problems are translated to or mamfested In complaInts of a physIcal nature Dr Gershon saw the claimant agaIn In November of 1997 and found she was stIll capable of performIng the tasks she could have performed In August. He could find no tender pOInts, no eVIdence of arthntIs and, whIle most of her muscles were tender to palpate her muscle power was excellent. He stated uneqUIvocally that he dId not" lIke the term fibromyalgIa" and he further stated that he had" no umque suggestIOn other than to partIcIpate In as aggressIve an exercIse program as she can tolerate" Also Included In Dr DIsenhaus' letter was a report from Dr Roussev a specIalIst In neurology and Internal medICIne He had been asked to see her because of complaInts of paraesthesIa of the 4th and 5th dIgItS of the nght hand. He arranged for nerve conductIOn studIes and concluded as follows Ms L.M. presents wIth nght ulnar neuntIs at the elbow wIth good clImcal and electromyographIc correlatIOn. The symptoms and electrophYSIOlogIc findIngs are relatIvely mIld and there IS a possibIlIty that hIS mIght respond to conservatIve treatment consIstIng of Ultra dol 300 mg bId, B6 25 mg dally and elbow splIntIng at mght to prevent full flexIOn. I wIll reassess the patIent In 2 months Vanous other test results were Included In Dr DIsenhaus' letter whIch were, for the most part, unremarkable or normal Her cholesterol levels were acceptable she expenenced no cardIac arrhythmIas, her blood tests were negatIve or normal, her lung and heart x-rays were clear and her upper G.I. senes showed no sIgmficant abnormalIty CLAIM # 97614 12 She attended at Dr DIsenhaus' office on February 20 1998 for a herpIform eruptIOn on her elbow At that tIme he stated that her ulnar nerve contInued to be hypersensItIve across ItS length and that nerve conductIOn studIes contInued to show a mIld reductIOn of conduct velocIty across the elbow In Apnl of 1998 the claimant was advIsed by the Insurer that the medIcal reports dId not substantIate a claim for a total contInUOUS dIsabIlIty from performIng the dutIes of her own occupatIOn as a Group Leader The claimant obJ ected and an appoIntment was arranged by the Insurer for her to undergo an Independent medIcal eXamInatIOn. That was conducted on May 5 1998 by Dr Dornan, who produced a lengthy report on hIS findIngs He began hIS eXamInatIOn by askIng the claimant about her complaInts Her lIst Included neck paIn, shoulder paIn, chest paIn, forearm paIn (both arms) nght wnst paIn, lower back paIn, paIn In the left thIgh, left calf paIn, left ankle paIn, exceSSIve fatIgue and other mIscellaneous problems He revIewed the hIStOry of her paIn, the course of her condItIOn, her socIal background, her recreatIOnal purSUItS and her current actIvItIes His observatIOns of her dunng the eXamInatIOn were as follows healthy lookIng, able to move In a free and flUId manner In no ObVIOUS dIstress, relaxed, normal gait etc His clImcal eXamInatIOn showed a full range of motIOn In all extremItIes, paIn free motIOn, no redness, heat or swellIng of the JOInts, no eVIdence of arthropathIc process, negatIve neurologIcal eXamInatIOn of all four lImbs, normal muscle bulk and symmetncal deep tendon reflexes Dr Dornan revIewed the claimant's medIcal hIStOry and noted that all of the vanous tests done to date had produced essentIally negatIve or normal results He noted wIth agreement Dr Gershon's faIlure to find any eVIdence of physIcal problems and hIS reference to somatIzatIOn. He consIdered Dr Roussev's report of mIld ulnar neuntIs on the nght sIde Dr Dornan revIewed the Job descnptIon provIded to hIm of the claimant's posItIOn and noted that the only physIcal aspect of her Job dutIes Involved lIftIng boxes of up to 20 kg. He stated, In part, as follows In accordance wIth the paucIty of findIngs or sIgns of somatIc Illness, my eXamInatIOn (and sImIlar negatIve findIngs of other clImcal observers), I have no addItIOnal recommendatIOns to make wIth respect to therapy It IS my ImpressIOn that therapy If any should be proposed, should be dIrected at the psyche Although Mrs M. IS currently not reCeIVIng any treatment of physIcal aIlments, If such treatment IS suggested, It should be dIscouraged. CLAIM # 97614 13 He went on to say that he was "unable to IdentIfy the presence of any clImcal or functIOnal Impairment of any sIgmficance" He dId not "gaIn an ImpressIOn of severe or dIsablIng fatIgue, any measure of the presence of paIn or for that matter any findIngs to suggest an Impairment generated from any orgamc pathology or the presence of physIcal Impairment or functIOnal dIsabIlIty Further her found that " Mrs M's complaInts of severe and dIsablIng paIn In vanous parts of the musculoskeletal system are purely subJ ectIve and are not reported, substantIated or corroborated by any physIcal findIngs on eXamInatIOn or functIOnal Impairments IdentIfied through observatIOn of movement and actIvItIes The Insurer demed the claimant's applIcatIOn for benefits on the basIs of Dr Dornan's report and the advIce of ItS medIcal consultant. That demal was appealed by the claimant In June of 1998 In the meantIme she began seeIng Dr Leung, a specIalIst In Rheumatology and Internal MedICIne who provIded Dr DIsenhaus wIth a medIcal report dated September 28 1998 In whIch he stated the folloWIng On eXamInatIOn, she IS a very pleasant woman wIth a long slender neck. She was exqUIsItely tender over the upper part of her C-spIne to about C5 worse on the nght. RotatIOn was 70 degree to the nght and 45 to the left. FlexIOn was only 30 degrees but extensIOn was 45 degrees There IS spasm In the upper splemus There IS a mIld SCOlIOSIS In the mId-back convex to the nght. FlexIOn was qUIte good as was extenSIOn. She has excellent range of motIOn In her penpheralJoInts However the tnggers were markedly actIve In the nght forequarter and left hIndquarter and moderately actIve In the other two quarters By actIve I mean that the muscles are actually palpably swollen and taut and tender There IS decreased sensatIOn In the nght 4th and 5th rays of the nght hand. Reflexes however IS (SIC) normal There IS no sIgn of nerve root compreSSIOn. There IS no penpheral synovItIs There IS marked tenderness In the nght lower nb cage generally over the bones as well as over the Intercostal muscles She has a bans of segmental hyperalgesIa along the lower nbs There IS severe tenderness over approxImately T7 Reflexes are preserved. Mrs M. Has symptoms suggestIve of chromc neck and back straIn wIth fibromyalgIa. The regIOn of referral suggests that there IS a nght C7 and S 1 root IrntatIOn. CLAIM # 97614 14 That letter was followed up wIth another report dated October 28 1998 by Dr Leung to the Umon. In that report he acknowledged that, because he had only known the claimant a short tIme, he was unable to offer a prognosIs Nevertheless, he dIagnosed her as suffenng from a mechamcally Incompetent spIne wIth IrntatIOn of the cervIcal and lumbosacral root and fibromyalgIa. He had the folloWIng comments wIth respect to Dr Dornan's report With respect to the summary of Dr Dornan's report, there IS no mentIOn that the exam IS for fibromyalgIa. EMG from December of 1997 by Dr Roussev showed reductIOn of conductIOn velocIty of the ulnar nerve across the cubItal tunnel However because of more proxImate sItes were not examIned, (SIC) the possIbIlIty of a double crush InvolvIng cervIcal nbs cannot be ruled out. Dr Dornan dId not seem to have apprecIate (SIC) the eXIstence of thIS Issue He concluded as follows I belIeve that In her present mental and physIcal condItIOn, Ms M. wIll have dIfficulty wIth prolonged SIttIng, standIng and walkIng as well as neck flexIOn. LIftIng, pullIng and pushIng wIll lIkely be dIfficult as well Her maJor problem however IS fatIgue She wIll reqUIre regular pen ods of rest In order to regaIn her energy and she IS qUIte deeply depressed at present. ThIS wIll Interfere wIth her cogmtIve skIll Unless she shows a substantIal Improvement In her stamIna, she wIll not be able to resume any occupatIOn In the foreseeable future A subsequent report from Dr Leung dated June 28 1999 stated, In part, as follows In response to your questIOns, I belIeve that Mrs M. suffers from mechamcal neck and back paIn as a result of dISC dIsease and fibromyalgIa. ThIS IS compounded by sItuatIOnal depressIOn and anxIety Ms M. has 18 out of 18 tngger pOInts affected. Although the CAT scan of the lumbar spIne was reported as "normal" I had a chance to reVIew the film and I dIsagree wIth that report. At the L4-S level she has dIffuse large left lateral bulge at L4-4 as well as a central left bulge at LS-S2 I belIeve that It IS easIly demonstrated If one supenmposes the dISC Image onto a correspondIng vertebra that the bulge hangs nght out all around. ThIS IS caused by teanng of the anulus resultIng In a loss of motor strength of the dISC In fact, one cannot exclude the possIbIlIty of the bulge encroachIng Into the Intervertebral foramen caUSIng referred paIn when a patIent IS actually weIght beanng. One should keep In mInd that the CT scan IS done In a supIne posItIOn and the dISC IS not under pressure I belIeve that thIS type of lesIOns are paInful In themselves and accounts for her CLAIM # 97614 IS Increased paIn when she undertakes any actIvItIes where her spIne IS loaded, such as In SIttIng, standIng and defimtely wIth lIftIng and carryIng. In my OpInIOn, Ms M. IS not capable of performIng eIther occupatIOn or at present any other occupatIOn. Her paIn IS substantIal and SInce It IS present at rest, It IS qUIte IntrusIve She needs fairly frequent rest pen ods to achIeve a modest level of comfort and thIS IS IncompatIble wIth any sustaIned actIvItIes Her depressIOn IS secondary to the stress of her CIrcumstances havIng beIng (SIC) depnved of any sources of Income By thIS tIme the claimant had sought the assIstance of a paralegal, Ms Alexander who attempted to clanfy the Insurer's posItIOn. She was advIsed by the Insurer In October of 1999 that Dr Leung's report dId not contaIn any new medIcal InformatIOn to cause It to change ItS mInd about the claimant's nght to benefits The claimant remaIned offwork and, In Apnl of2000 provIded the Insurer wIth another note from Dr DIsenhaus statIng" L.M, contInues to suffer from severe fibromyalgIa, whIch permanently prevents her from remuneratIve work of any kInd, IncludIng those dutIes outlIned In her "Job descnptIOn" She wIll not be fit to return to work, ever" REASONS FOR DECISION That IS the background of the complaInt before me The Issue IS whether thIS claimant IS able to perform the essentIal dutIes of her own occupatIOn of Group Leader In government publIcatIOns AccordIng to the file, the claimant has had ongOIng problems wIth fatIgue whIch became further problematIc In 1997 wIth the addItIOn of dIffuse paIn In numerous areas of her body The first medIcal report from Dr DIsenhaus IS very specIfic about the areas of her body affected. He acknowledged that the only sIgmficant abnormalIty In her tests was the nght ulnar neuntIs but focussed on her severe fatIgue as a reason for her InabIlIty to return to work. His dIagnosIs was fibromyalgIa. Dr Gershon, however dId not find any tender spots In hIS eXamInatIOn of the claimant and felt she was capable of numerous physIcal actIvItIes IncludIng walkIng a mIle, clImbIng CLAIM # 97614 16 a flIght of stairs, combIng her hair and gettIng In and out of a tub Dr Gershon candIdly admItted however that he dId not favour the term "fibromyalgIa" and one wonders whether hIS reluctance to acknowledge the dIsease affected hIS approach to thIS patIent. The Insurer relIes In part on ItS demal of benefits on the normal or unremarkable tests performed dunng thIS tIme on the claimant. Those test, however are not tests for fibromyalgIa. That Illness mIght have no effect on her cholesterol levels, heart functIOn or lung capacItIes The fact they were negatIve IS not helpful In the determInatIOn of whether she suffers from fibromyalgIa and, If so whether the degree of her symptoms renders her Incapable of returmng to her former posItIOn. The next medIcal report of sIgmficance IS that of Dr Dornan. NotwIthstandIng the long lIst of complaInts he heard from the claimant, he could find no dIsabIlIty and made no recommendatIOns about her future treatment. In fact, he went further and suggested that the claimant's complaInts of paIn were purely subJectIve and unsubstantIated and uncorroborated by any physIcal findIngs on eXamInatIOn. What IS InterestIng about Dr Dornan's report IS the absence of any reference to fibromyalgIa. GIven that was the dIagnosIs that drove her applIcatIOn for benefits, It IS surpnsIng that he dId not note the presence or absence of tngger pOInts That Dr Dornan dId not consIder the prevIOUS dIagnosIs of fibromyalgIa IS even more dIfficult to explaIn In lIght of Dr Leung's report some three months later In that eXamInatIOn Dr Leung found the claimant to be "exqUIsItely tender over the upper part of her C-spIne" wIth "markedly actIve" tngger pOInts and palpably swollen, taut and tender muscles His eXamInatIOn confirmed Dr DIsenhaus' dIagnosIs offibromyalgIa and, In fact, In a later report, noted the claimant had 18 out of 18 tngger pOInts AgaIn, It IS InterestIng that, even though Dr Leung's report contaInS a more specIfic explanatIOn for the basIs of hIS dIagnosIs of fib romyalgI a, and even though he adds a new dIagnosIs ofmechamcal back paIn due to dISC dIsease the Insurer took the posItIOn that Dr Leung's reports dId not contaIn CLAIM # 97614 17 any new InformatIOn that would cause It to reconsIder ItS deCISIOn to deny benefits Weare left wIth two OpInIOnS that clearly state the claimant IS not suffenng at all or to the extent she claims, that of Dr Dornan and that of Dr Gershon. Both of those reports Ignore, to a large extent, the medIcal OpInIOn of Dr DIsenhaus regardIng hIS dIagnosIs of fibromyalgIa. Contrast those OpInIOnS wIth those of Dr DIsenhaus and Dr Leung In whIch they both uneqUIvocally find the claimant to be suffenng from severe symptoms offibromyalgIa sufficIent to keep her off work for the foreseeable future The Employer took the posItIOn that SInce Dr Dornan's report was the only one that showed here had been a thorough eXamInatIOn of the claimant and, because of ItS completeness, It should be preferred over that of Dr Leung. I dIsagree Dr Dornan IS a specIalIst In rehabIlItatIOn and return to work Issues but Dr DIsenhaus saw the claimant on a regular basIs and was In a better posItIOn to comment on her abIlIty to functIOn at home and at work. The Employer also pOInted out that neIther Dr DIsenhaus nor Dr Leung, and In partIcular Dr Leung, dId not consIder the dutIes of her posItIOn In consIdenng whether she could return to work. AgaIn, I dIsagree Dr DIsenhaus dId have a functIOnal capacItIes questIOnnaire before hIm when he first supported her claim for benefits Dr Leung was of the VIew that her condItIOn, and In partIcular her symptoms, prevented her from consIdenng a return to work and commented specIfically on her Increased paIn when she undertook any actIvItIes In whIch her spIne was Involved. FInally the Employer submItted that, even If! were to allow the appeal, the benefits should only be approved from the date of the CT scan shoWIng a problem wIth her spIne SInce that was the first mentIOn that her dIsabIlIty was attnbutable to that cause Dr Leung's OpInIOn on her abIlIty to return to work IS not based solely on the results of the CT scan. He reaffirmed her dIagnosIs offibromyalgIa and clanfies the degree to whIch she IS affected by the symptoms As well, she had complaIned about back paIn early on In her applIcatIOn for benefits and CLAIM # 97614 18 Dr Gershon found that her back problem was clearly orgamc In nature The claimant saw Dr Dornan In May of 1998 and followed up wIth an appoIntment wIth Dr Leung In September of that same year GIven hIS uneqUIvocal endorsement of Dr DIsenhaus' dIagnosIs and prognosIs, I must conclude her dIsabIlIty began as stated by Dr DIsenhaus and contInued essentIally unchanged untIl she saw Dr Leung. I find no reason to Ignore or dIsagree wIth the conclusIOns of Dr DIsenhaus and Dr Leung. As her physIcIans they were In a better posItIOn than Dr Dornan and Dr Gershon to evaluate the degree of paIn she was expenenCIng and the effect of that paIn on her abIlIty to return to work. I also cannot Ignore the complete lack of acknowledgment by both Dr Dornan and Dr Gershon of the claimant's dIagnosIs offibromyalgIa. At least Dr Gershon admItted to hIS reluctance to label patIents WIth that dIagnosIs because of far reachIng consequences as an explanatIOn for hIS faIlure to address the Issue of tngger pOInts and paIn. Dr Dornan sImply Ignored the prevIOUS dIagnosIs Had he examIned the claimant and dIsagreed wIth or dIsputed the eXIstence of fibromyalgIa or commented on the presence or absence oftngger pOInts, hIS report mIght have been more persuaSIve The absence of any reference to fibromyalgIa places hIS final OpInIOn In questIOn and, for that reason I accept the OpInIOnS of Dr DIsenhaus and Dr Leung over that of Dr Dornan. For the reasons mentIOned above, the appeal IS allowed. Dated thIS 25th day of October 2001 ~ .' ~ - - ~ . '- ~ . Loretta Mikus CLAIM # 97614 19 CLAIM # 97614