HomeMy WebLinkAbout2004-153627 Benefits Claimant 04-07-06 Decision
In the matter of an Appeal
Before
The Subcommittee of the
Joint Insurance Benefits Review Committee
Regarding Claim # 153627
Chair: Felicity D. Briggs
Appearing for the Union: Hilary Cook
Appearing for the Employer: Janice Campbell
Included m the most recent collectIve agreement between the partIes are the
followmg prOVISIOns
Article 22 - Grievance Procedure
Article 22.9 - Insured Benefits Grievance
22 9 1 An allegatIOn that the Employer has not provIded an
msured benefit that has been contracted for m thIS
Agreement shall be pursued as a Umon gnevance filed
under ArtIcle 22 13 (Umon Gnevance)
1 Any other complamt or dIfference shall be referred to the
ClaIms ReVIew SubcommIttee of Jomt Insurance Benefits
RevIew CommIttee (JlBRC), establIshed under AppendIx
4 (Jomt Insurance Benefits RevIew CommIttee), for
resolutIOn.
Appendix 4
JOINT INSURANCE BENEFITS REV IEW COMMITTEE
1 Name of Committee
The CommIttee shall be referred to as the Jomt Insurance Benefits
RevIew CommIttee
2. Purpose of Committee
The purpose of thIS CommIttee IS to facIlItate commumcatIOns
between the Employer and the OPSEU on the subject of Group
Insurance, mcludmg BaSIC LIfe Insurance, Supplementary LIfe
Insurance, Extended Health Insurance, Long Term Income ProtectIOn
Insurance, and such other negotIated benefits as may, from tIme to
tIme, be mcluded m the Group Insurance Plane
It IS understood that the Group Insurance benefits to be prOVIded to
employees and the cost shanng arrangements between the Employer and
ItS employees shall be as set out m any applIcable collectIve agreement or
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arbItratIOn award, and the matters for consIderatIOn by thIS CommIttee
shall be only as set out m 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 m total At meetmgs of the
CommIttee, each party may be accompamed by an Actuary to provIde
techmcal advIce and counsel.
4. Duties of the Committee
The dutIes of the CommIttee shall conSIst of the followmg
- Development of the specIficatIOns for the publIc tendermg of any
negotIated benefits whIch may be mcluded m the Group Insurance
Plan (to cover the bargamIng umt only),
- DetermmatIOn of the manner m whIch the specIficatIons wIll be
made avaIlable for publIc tendermg;
- ConsIderatIOn and exarmnatIOn of all tenders submItted m response
the specIficatIOns for tender and preparatIOn of a report thereon,
- RecommendatIOn to the Government of Ontano on the selectIOn of
the msurance carrIer or carrIers to underwnte the Group Insurance
Plans,
- ReVIew of the semI-annual financIal reports on the Group Insurance
Plan, and
ReVIew of contentIous claIms and recommendatIOns thereon, when
such claIm problems have not been resolved through the eXIstmg
admmIstratIve procedures.
The specIficatIOns for tender WIll descnbe the benefits to be provIded,
the cost sharIng arrangement between the Employer and ItS employees,
the past financIal hIStOry of the msurance plans, the employee data, the
format for the retentIOn IllustratIOn for each coverage and the financIal
reportmg reqUIrements. Tenders shall be entertamed by the CommIttee
from any mdIVIdual msurance carrIer actmg solely on ItS own behalf.
ThIS shall not preclude such carrIer from arrangmg remsurance as may
be necessary
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The basIs for recommendatIOn of an msurance carrIeres) wIll mclude
the abIlIty of the carrIere s) to underwnte the plan, complIance of the
carrIer's quotatIOn WIth the specIficatIOns for tender, the carrIer's
servIce capabIlItIes and the expected long term net cost of the benefits
to be provIded.
1 Experience Review
2. Claims Review Subcommittee
(a) There shall be a subcommIttee whose mandate IS to reVIew, and
make decIsIOns on, complamts or dIfferences mvolvmg the
demal of msured benefits under the Central CollectIve
Agreement, when such Issues have not been resolved through
the eXIstmg admmIstratIve procedures, save and except a
complamt or dIfference ansmg under ArtIcle 22 9 1 (Insured
Benefits Gnevance) of the Central CollectIve Agreement. The
subcommIttee shall be composed of two (2) representatIves
selected by the Employer, two (2) representatIves selected by
OPSEU, and an mdependent thIrd party who IS agreed to by
both partIes.
(b) Appropnate ImpartIal medIcal consultants shall be avaIlable to
the subcommIttee m an advIsory capaCIty to prOVIde mformatIOn
on the nature of speCIfic Illnesses or dIsabIlItIes.
(c) MembershIp on the subcommIttee shall be for one (1) year
penod, and IS renewable at the dIscretIOn of the nomInatmg
party, or partIes m the case of the renewal of the term of the
mdependent thIrd party
(d) DeCISIOns of the subcommIttee are final and bmdmg.
(e) The fees and expenses of the medIcal consultants referred to m
clause (b), and the mdependent thIrd party referred to m clause
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(a), shall be dIvIded equally between the Employer and the
Umon.
Article 42 - Long Term Income Protection
Total dIsabIlIty means the contInuous mabIlIty as the result of Illness,
mental dIsorder, or mJury of the Insured employee to perform the
essentIal dutIes of hIS or her normal occupatIOn dUrIng the
qualIficatIOn penod, and dunng the first twenty-four months of the
benefit perIod and thereafter durmg the balance of the benefit penod,
the mabIlIty of the employee to perform the essentIal dutIes of any
gamful occupatIOn for whIch he or she IS reasonably fitted by
educatIOn, trammg or experIence
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 regardmg
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 m RIght
of OntarIo and the OntarIO Pubhc ServIce Employees Umon.
PURPOSE OF SUBCOMMITTEE
To reVIeW and make deCISIOns on appeals from employees on claIms
mvolvmg the demal of msured benefits under the collectIve agreement
whIch have preVIOusly been removed from JIBRC
Claim #153627 5
REFERRAL TO THE SUBCOMMITTEE
Employees wIth claIms that have been removed from JIBRC wIll be
notIfied of such, m a tImely, manner by letter (referred to as the
"NotIce Letter") to theIr last known address.
An employee whose claIm has been removed, has 45 days, from the
date of the notIce letter, to submIt a request m wrItmg to OPSEU
askmg that OPSEU refer theIr case to the subcommIttee ThIS letter
must be copIed to the Management Co-ChaIr of the JIBRC
OPSEU has 90 days from the date of the notIce letter to adVIse the
Management Co-ChaIr of JIBRC of theIr deCISIOn to agree or deny the
request to appeal. If notIce IS not receIved from OPSEU 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 m the appeal process.
The SubcommIttee WIll clarIfy medIcal eVIdence as needed, WIth a
medIcal consultant agreed to by both MBS and OPSEU
DeCISIOns of the SubcommIttee are final and bmdmg.
Upon receIpt of the deCISIOn, a Memorandum of Settlement (as
attached) WIll be prepared and SIgned by the partIes and forwarded to
the msurer
SUBCOMMITTEE MEMBERSHIP.
The subcommIttee WIll consIst of resource representatIves from
OPSEU and MBS and an mdependent thIrd party "ChaIr" to be named
by MBS and OPSEU
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ROLE OF THE CHAIR
To reVIew case representatIOns from MBS and OPSEU
To make a determmatIOns III wrItmg wIth respect to each case
DeCISIOns must be m accordance wIth the OPS CollectIve Agreement
between the Employer and OPSEU and consIstent WIth the group
msurance plans m place at the tIme facts gIvmg nse to the dIspute
arose
ROLE OF MEDICAL CONSULTANTS
Appropnate ImpartIal medIcal consultants wIll be agreed by the partIes
and shall be avaIlable to the SubcommIttee m an advIsory capaCIty If
the partIes cannot agree on a medIcal consultant, the ChaIr may call on
a consultant from a roster supplIed by the College of PhysIcIans and
Surgeons.
The medIcal consultants WIll prOVIde mformatIOn on the nature of
speCIfic Illnesses or dIsabIlItIes
The ChaIr may request an mterpretatIOn of medIcal reports, test results
and other medIcal documentatIOn on file
The medIcal consultant IS not a member of the commIttee and WIll not
prOVIde an opmIOn related to a decIsIOn on the appeal.
FEES
Fees and expenses, as approved by the partIes, of medIcal consultants
and the ChaIr shall be dIVIded equally between MBS and OPSEU
FORMAT OF MEETINGS.
Each appeal WIll be dealt wIth separately
Both partIes, through theIr representatIves WIll prOVIde, full dIsclosure
of the supportmg documentatIOn upon whIch they mtend to rely ThIs
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dIsclosure wIll take place at least two weeks m advance of the meetmg
of the subcommIttee dealmg wIth the subject matter of the appeal.
If the ChaIr reqUIres clarIficatIOn of medIcal eVIdence, a meetmg of the
SubcommIttee WIll be arranged wIth a medIcal consultant agreed to by
both MBS and OPSEU, or faIlIng such agreement, wIth a medIcal
consultant called by the ChaIr
MBS and OPSEU WIll Jomtly present a statement of agreed upon facts
(to the extent possible) for the appeal to the ChaIr
ASIde from the ImpartIal medIcal consultant dIscussed above, no other
WItnesses WIll be called, except by request of the ChaIr However, the
mdIvIdual claImant WIll be allowed to file a wntten statement m lIeu
of testIfymg. If the mdIvIdual claImant chooses to file a statement It
must be prOVIded to the Management Co-ChaIr of JIBRC at the same
tIme as OPSEU's request for appeal. MBS has the nght to mtroduce a
WrItten response to thIS statement.
OPSEU WIll present ItS posItIon on the case wIth supportmg
arguments to the ChaIr MBS WIll present ItS posItIOn on the case wIth
supportmg arguments to the ChaIr and WIll respond to OPSEU's
posItIon. OPSEU WIll have rIght of reply PresentatIOn by both partIes
WIll be based upon the mformatIOn/record on file before the msurance
carrIer at the tIme the matter IS removed from the JIBRC, the employee
statement If any and MBS' s response to the statement.
EIther party may, If necessary request the attendance of the claImant,
who shall be allowed a leave of absence wIthout pay, wIth no loss of
credIts, to attend the sub-commIttee meetmg as an observer only
The ChaIr WIll render a wntten decIsIon wIth supportmg ratIOnale
FREQUENCY OF MEETINGS:
On an as needed basIs as determmed by MBS and OPSEU Jomtly
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The partIes agree to these Terms of Reference m support of the
ImplementatIOn of ArtIcle 22 9.2 and AppendIx of the collectIve
agreement.
In the mstant matter, the partIes agreed to the followmg facts
1 Mr D.P was born December 23, 1954 He IS 49 years old.
2 Mr D.P was employed by the Mimstry of CorrectIOnal ServIces as a
CorrectIOnal Officer
3 Mr D.P has been a member of the Ontano PublIc ServIce smce Apnl
7, 1980
4 Mr D.P's last day worked was October 18, 2000 He receIved short
term dIsabIlIty benefits from October 19,2000 to February 25,2001
5 Mr D.P dId not receIve long-term dIsabIlIty benefits from Apn119,
2001 untIl December 18,2001
6 Mr D.P 's claIm IS for the penod Apn120, 2001 onward.
7 Mr D.P's claIm IS for the OWN OCCUPATION defimtIOn of
benefits
In the attendmg physICIan'S statement, dated December 21, 2000, Dr J.B
SaId that the claImant suffered from a major depressIOn, leg pam (not yet
dIagnosed), sleep dIsorder and rectal bleedmg. It was also stated that Mr
D.P was on antIdepressants and It was unknown as to when he would be
able to return to work at hIS own occupatIOn.
On January 21, 2001, Dr J.H. wrote to the claImant's famIly physICIan and
stated the followmg, m part.
I am sorry about the tardy colonoscopy report, whIch mCIdentally was
completely normal
He hasn't had any anal symptoms smce thIS test was performed.
If hIS symptoms recur, he mIght be a candIdate for a mIld anal
dIlatatIOn.
I realIze there are lots of other problems on hIS hands, mcludmg the
fact that he's soon to be laId off WIth the closure of the Stratford JaIl
and thIS probably has some bearmg on hIS general presentatIOn.
Claim #153627 9
Dr J .H. also wrote to ManulIfe on March 7, 2001 m response to enqUInes.
In that letter he stated.
Thank you for your letter I enclose numerous reports regardmg two
of hIS complamts VIS. rectal bleedmg and leg pam.
Rectal bleedmg. ThIs gentleman ongmally underwent a
hemorrhOIdectomy m March of 1999 and subsequently was back
seemg me wIth a hIstory of rectal bleedmg. It was mvestIgated on the
assumptIOn that he mIght be suffermg from a fissure but colonoscopy
was basIcally unremarkable and hIS anal symptoms had subsIded by
late January I have not seen thIS patIent smce that tIme
Leg Pam. When I saw hIm ongmally m the office, January 1999 and
subsequently m December of last year, no comments were made
about hIS leg pam. I am therefore, unable to comment.
F or the record, I should pomt out that of course that he IS know to
suffer from vancose vems of hIS leg. He underwent, as you WIll note,
a stnppmg of hIS long saphenous vem m the nght SIde In February of
last year
There was some correspondence between ManulIfe and the claImant about
the amount of work, If any, he undertook as a manager of a Jumor hockey
team. It IS not necessary to set out that area of dIspute as I dId not take It
Into account m arrIvmg at my decIsIOn.
Dr J.R., psychIatnst, wrote to the claImant's famIly phYSICIan on May 2,
2001 and stated the followmg
Thank you for askmg me to see Mr D.P I had seen hIm m 1996 when
he presented wIth sIgmficant problems m relatIOn to hIS marrIage and
the emotIOnal consequences of that. I WIll therefore not go mto detaIls
WIth regard to hIS early hIstory EssentIally m the last few years, Mr
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D.P has returned to work and managed to work for a whIle However,
he has had some mterruptIOns on account of surgery on hIS legs for
vancose vems Smce October of 2000 he has been unable to work on
account of severe problems wIth hIS legs for whIch he IS bemg
mvestIgated.
Mr D.P IS very preoccupIed wIth hIS Job, whIch he finds exrtremely
stressful even m dIscussIOn. He seems to have developed some
anhedoma and a sense of frustratIOn, uselessness and worthlessness.
He IS not actIvely SUIcIdal He feels helpless often and does not wIsh
to see any of hIS colleagues or others and prefers to stay at home m
hIS own shell. He IS sleepIng reasonably well and IS able to look after
hImself reasonably It appears as though Mr D.P IS expenencmg a
number of depressIve symptoms However he IS not anxIOus nor IS he
obsessIve compulsIve nor IS there any phobIa. There IS no element of
pSYChOSIS nor IS there any cognItIve deficIt even thought hIS
concentratIOn IS sIgmficantly affected. I agree wIth Mr D.P that
currently he IS unable to return to any gamful employment on account
of a number of health related and other Issues that seem to be
overwhelmmg hIm. I have not changed hIS medICatIOn, whIch IS
Effexor 75 mg. I have not gIven hIm any follow up appomtments at
thIS stage as It appears as some one on one counselmg, SImIlar to the
one that he was receIvmg In 1996, would be helpful to hIm. However,
should there be any sIgmficant detenoratIOn, I would be happy to see
hIm agam.
After receIvmg the above medIcal reports ManulIfe mformed the claImant
that he dId not meet the defimtIOn of totally dIsabled and therefore was not
entItled to benefits Subsequently, an EMG report was sent to the carrIer
regardmg the claImant's leg paIn. There were no abnormal findmgs therem.
Further, a bone scan report was performed. In that report It was stated that
there were degeneratIve changes m the metatarsal phalangeal Jomts, nght
patella and both shoulders. In the follow-up letter sent from the radIOlogIst
to the claImant's famIly phYSICIan dated June 6, 2001 It was stated, m part.
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With respect to vocatIOnal Issues, degeneratIve changes m the feet
would not ordmanly provIde the basIs for ongomg or permanent
dysfunctIOn - partIcularly m the context of an approprIate course of
conservatIve treatment. However, If return to work (RTW) Issues
remam problematIc, It may stIll remam the most appropnate for thIS
patIent to have an mdependent medICal exammatIOn.
No such mdependent medIcal was undertaken. Indeed, there was VIrtually
no further medIcal reports before me except a June 10, 2003 letter from Dr
K.B, the claImant's famIly physIcIan m response to quenes made by the
Umon. In that letter Dr J.B stated, In part.
His dIagnosIs m March 2001 was pamfullegs, cause uncertam, and a
mood dIsorder You lIkely have Dr C and Dr R's notes whIch speak
to thIS m 2001 He had some hard eVIdence of degeneratIve changes
m hIS feet on a bone scan.
I am unable to comment on whether these condItIons remam the same
today as I have not seem hIm smce November 2001
At that tIme, he was stIll havIng a lot of leg and foot pam aggravated
by all the staIrs at work, for whIch work was unable to accommodate
hIm. His mood dIsorder may have settled some, as I have not been
renewmg hIS Effexor smce 2001 EIther that, or he IS suffermg WIth It
untreated.
His work restrIctIOns m Apnl 2001 revolved around domg staIrs m
the JaIl Most Jobs reqUIred a lot of staIr work I understand, except for
"the cage", whIch he only occasIOnally dId. All the staIrs and work on
hIS feet aggravated the foot and leg pam. In 2000, he had mentIOned It
got bad enough hIS legs were gIvmg out on hIm. AddItIonally, hIS
mood was poor at the JaIl I belIeve there had been long, drawn out
threats to Immmently close the Statford Jail, whIch would greatly
dISrupt the lIves of the guards, partIcularly those who had long roots
m the regIOn as they would eIther have to move a conSIderable
dIstance or retIre ThIS created very poor morale, and a number of
guards, Mr D.P mcluded, got burnt out WIth the chromcally stressful
threat. With the above phYSIcal and psychIatrIC troubles he felt he was
unable to contmue workIng there
I am guessmg you possess the relevant copIes, but I shall re-copy
them agam for your benefit. I saw hIm monthly m the office from
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June to November 2001 to document hIS legs were not Improvmg and
reVIew the enclosed specIalIsts' notes wIth hIm.
I cannot comment on whether Mr D.P's condItIon was sufficIently
dIsablmg to meet ManulIfe' s cntena for benefits, as I am a doctor not
an msurance expert. I guess Mr D.P thought It was.
There was no dIspute between the partIes that Mr D.P had a penod
between February 25 2001 and Apnl 19, 2001 where he had no coverage
and was not entItled to short term benefits It was the Umon's VIew that
accordmg to the May 2, 2001 letter from Dr J.R., the claImant was totally
dIsabled and so the appeal should be upheld. The Employer asserted that It
IS eVIdent from the vanous documents that at no tIme was the claImant
totally dIsabled.
In my VIew, thIS appeal must be dIsmIssed. SImply put, there IS nothIng m
the eVIdence before me that would have me find that the claImant IS wholly
and totally dIsabled from performmg the essentIal dutIes of hIS own
occupatIOn. The only ObjectIve eVIdence regardmg hIS leg pam was a report
of degeneratIve changes However, It was make clear by the physICIan who
performed the test that thIS condItIOn does not normally render one dIsabled.
He suggested that an mdependent medICal exammatIOn be performed but
that was never done accordmg to the file
The objectIve eVIdence regardmg Mr D.P's rectal bleedmg was that after a
colonoscopy m January 2001, hIS symptoms abated.
Fmally, the report from the psychIatnst IS sIgmficantly short of establIshmg
that the claImant was totally dIsabled. Indeed, he was seen only once His
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medIcatIon was not altered and Dr J.R. decIded It was not necessary to
contmue to treat the claImant. He suggest counselIng but agam, there IS no
eVIdence that suggestIon was acted upon.
The Umon suggested that, accordmg to the file there was no eVIdence the
claImant was offered accommodatIOn. That mIght be so However, any Issue
regardmg a faIlure to be accommodated IS properly argued m another forum.
I am buttressed m my VIew that the claImant IS not totally dIsabled by the
June 10, 2003 letter from the claImant's famIly phYSICIan. Dr J.B had not
seen the claImant smce November of2001, had not refilled the prescnptIOn
for antIdepressants and dId not report that any counselmg had taken place It
IS worthy of note that the clImcal note Included m the eVIdence before me
do not extend mto the penod for whIch the claImant IS askmg for benefits
F or those reasons, the appeal IS dIsmIssed.
Dated m Toronto thIS 6th of July, 2004
FelIcIty D Bnggs
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