HomeMy WebLinkAbout2004-44089 Benefits Claimant 04-07-05 Decision
In the matter of an Appeal
Before
The Subcommittee of the
Joint Insurance Benefits Review Committee
Regarding Claim # 44089
Chair: Felicity D. Briggs
Appearing for the Union: Hilary Cook
Appearing for the Employer: Ferina Murji
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 (JIBRC), establIshed under AppendIX
4 (J omt 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 J omt 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
Claim #44089 2
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 tenderIng of any
negotIated benefits whIch may be Included m the Group Insurance
Plan (to cover the bargammg umt only),
- DetermmatIOn of the manner m whIch the speCIficatIOns WIll be
made avaIlable for publIc tenderIng,
- ConSIderatIon and exammatIOn 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 carner 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 sharmg arrangement between the Employer and Its employees,
the past finanCIal hIstory of the Insurance plans, the employee data, the
format for the retentIOn IllustratIOn for each coverage and the financIal
reportmg reqUIrements. Tenders shall be entertamed by the Comrmttee
from any mdIvIdual Insurance carrIer actmg solely on ItS own behalf
ThIS shall not preclude such carner from arrangmg remsurance as may
be necessary
Claim #44089 3
The basIs for recommendatIon of an msurance carrIeres) wIll mclude
the abIlIty of the carner(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 GrIevance) 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 nommatmg
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
Claim #44089 4
(a), shall be dIvIded equally between the Employer and the
Umon.
Article 42 - Long Term Income Protection
Total dIsabIlIty means the contmuous mabIlIty as the result of Illness,
mental dIsorder, or mJury of the msured employee to perform the
essentIal dutIes of hIS or her normal occupatIOn dunng the
qualIficatIOn penod, and dunng the first twenty-four months of the
benefit perIod and thereafter dUrIng the balance of the benefit perIod,
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 (heremafter 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 Ontano and the Ontano PublIc 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 #44089 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 wntmg 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. IfnotIce IS not receIved from OPSEU wIthm 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 clanfy 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
Claim #44089 6
ROLE OF THE CHAIR
To reVIew case representatIOns from MBS and OPSEU
To make a determmatIOns In 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
Claim #44089 7
dIsclosure wIll take place at least two weeks In advance of the meetmg
of the subcommIttee dealmg wIth the subject matter of the appeal
If the ChaIr reqUIres clanficatIOn of medIcal eVIdence, a meetmg of the
SubcommIttee wIll be arranged WIth a medIcal consultant agreed to by
both MBS and OPSEU, or faIlmg 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
wntten 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 nght 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
Claim #44089 8
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 Instant matter, the partIes agreed to the followmg facts
1 Ms S G was born on June 25, 1961, she IS 41 years old.
2 Ms. S G IS employed by the Mimstry of PublIc Safety and SecurIty as
a CorrectIOnal Officer 2 (CO2)
3 Ms. S G has been employed by the OntarIO PublIc ServIce smce
Apnl7, 1986
4 Ms S G stopped workmg as a result of her mJunes on March 6,
1995 Ms. S G receIved short-term dIsabIlIty payments for the penod
between March 6th and September ih 1995
5 Ms. S G began receIvmg L TIP benefits on September 8, 1995 under
the "own occupatIOn" test for benefits On November 13, 1997 Ms
S G was advIsed that she dId not meet the test for "any occupatIOn"
and that her benefit entItlement would be termmated as of December
31, 1997
6 Ms. S G's claIm falls under the "any occupatIon" defimtIOn of
benefits.
When Ms. S G was 33 years old she was mvolved m two motor vehIcle
accIdents (heremafter referred to as "MY A") wIthm a one month penod.
Accordmg to the dIagnostIc Imagmg report dated March 1, 1995, she
suffered a "compressIOn fracture of the upper surface of T-12" and "left
knee effuSIOn" as the result of the first MY A. She absented herself from
work shortly thereafter due to mcreased pam. After the second MY A those
mJunes were further aggravated. In addItIon to her orIgmal mJunes she was
dIagnosed WIth "lumbar spram and tendomtIs of the shoulder and, probably,
taIlbone contUSIOn" By all accounts, pnor to these aCCIdents Ms. S G had
Claim #44089 9
been a healthy and fit woman who was known to "work out" on a regular
basIs Indeed, she was an aerobIcs Instructor
In May of 1995 Ms. S G began attendmg at the CanadIan Back InstItute
(hereInafter referred to as "CBI") for therapy In a report dated May 24,
1995 the assessment stated, m part.
Based on thIS exammatIOn, thIS patIent IS presentmg WIth mechamcal
neck, upper and lower back pam as well as pOSSIble nght shoulder
rotator cuff tendomtIs and a pOSSIble bIlateral patello- femoral knee
pam. Although Ms. S G IS a bodybuIlder and a fitness mstructor
herself, I thmk she needs some gUIdance WIth respect to her
rehabIlItatIOn and more speCIfic strengthemng than she has been
domg. She seems qUIte anXIOUS to become more actIve and resume
her regular lIfestyle I thmk she needs some gUIdance m thIS respect,
however, and should do very well m a supervIsed actIve rehabIlItatIOn
program. I thmk WIth the educatIOn and pam management technIques
that she WIll be taught, she should be able to control her pam
suffiCIent to return to her regular actIVItIes wIthm eIght to ten weeks
On June 5, 1995, the claImant's famIly phYSICIan, Dr G.K. wrote that Ms
S G had "severe mJury of lumbar spme, nght shoulder and left knee" The
prognosIs was such that It was thought that she would be dIsabled from her
own occupatIOn for a penod of SIX months Shortly thereafter, CBI reported
that her complamts were "headache, postenor cervIcal pam, pam between
the shoulder blades, especIally m the lower half of the thoraCIC spme, lower
back pam aggravated by bendmg, lIftmg and tWIstmg actIVItIes and bIlateral
pamful knees" She had further radIOgraphy whIch dIsclosed no new
mformatIOn but she was prescribed antI-mflammatory medIcatIOns.
On August 4, 1995, the RegIstered PhYSIOtherapIst at CBI wrote, m part.
Claim #44089 IO
RECOMMENDATIONS At thIS tIme, I recommend that S G be
dIscharged from the regular early mJunes program and be placed on
the physIcal condItIonmg program. ThIS Involves daIly attendance
wIth a recheck tWIce per week by the phYSIOtherapIst and exerCIse
therapIst. Due to the phYSIcal nature of her Job, I feel she IS not
capable of returnmg to work as yet. However, at the end of the
phYSIcal condItIonmg program, she may be capable of return to work
on a modIfied baSIS If possible She may also need to contmue WIth
the sequence trammg program followmg the one month phYSIcal
condItIOmng program, however, thIS wIll be assessed further at a later
date If you have any further questIOns or comments, please feel free
to contact me at any tIme
On September 8, 1995 Ms. S G was mformed that her claIm for L TIP was
approved. Throughout thIS penod the claImant contInued attendmg at CBI
and partICIpated m exerCIse therapy She was dIscharged from CBI on
October 3, 1995 and at that tIme It was saId that "In companson to the
dIscharge report of August 4, range of motIon of the cervIcal and lumbar
spme are full" Her "trunk strength IS stIll lImIted m upper and lower back
extensor strength due to low back pam" however her "upper and lower
abdommal strength IS full" Her lIftmg abIlIty had not changed. It was
recommended that Ms S G be placed on a sequence trammg program for a
month and that she contmue WIth pool therapy
In Dr G.K.'s attendmg phYSICIan's statement dated January 8, 1996 It was
noted that the claImant was Improvmg slowly It was now "unknown" when
Ms. S G would be able to return to work.
On January 10, 1996 Ms. S G was seen by an orthopedIc surgeon, Dr
G.J.K. who noted that she was now 15 weeks pregnant. It was erroneously
Claim #44089 11
thought that she was carrymg twms She was fully assessed and m hIS
twelve page report, Dr G.K. stated the followmg
If Mrs SG were not pregnant, would she possess the physical
capabilities to return to work as a correctional officer?1 am not
Impressed that Mrs S G ' s pregnancy has any sIgmficant Impact on
whether or not she IS able to return to work as a correctIOnal officer at
the present tIme However, I certamly feel that her pregnancy WIll
Impact sIgnIficantly on whether or not she returns to work m the
future.In terms of her current absence from work, I am mclIned to
agree wIth the opmIOn of the CanadIan Back InstItute m the
FunctIOnal CapacIty EvaluatIOn Report, where they mdIcate that Mrs.
S G would be capable of performmg the dutIes of her Job excludmg
emergencIes, physIcal altercatIOns WIth m-mates and searches I
agree that It IS not possIble to determme If Mrs. S G's functIOnal
abIlItIes would meet the unpredIctable emergency demands of her Job
I agree that return to work on modIfied dutIes and modIfied hours
would be reasonable at present as well as an actIve work condItIomng
program. On the other hand, I belIeve that her pregnancy IS cntIcal m
determmmg whether or not she WIll return to work m the future She
IS presently 15 weeks pregnant WIth twms, not workmg and even If
her musculoskeletal complamts resolved tomorrow, I would thmk that
her chances of returnmg to work before the end of her pregnancy
would approach ml Followmg her pregnancy, WIth twm babIes to
care for, her chances of returnmg to work would be lImIted. With the
supenmposed musculoskeletal complamts, her chances of returnmg to
work approach ml Currently, her pnmary dIsabIlIty preventmg her
return to work are musculoskeletal complamts related to the M.V.A.s.
As the months pass, her pregnancy WIll obvIOusly take on a much
greater role m preventmg her return to work. Followmg her delIvery,
It wIll be most dIfficult to proportIOn responsIbIlIty for not workmg,
whether due to havmg twm babIes or musculoskeletal complamts or a
combmatIOn of the two.Mrs S G IS currently 10-11 months from the
M.V.A.s and contmues to expenence cervIcal and thoracIc and
lumbar dIscomfort. Short term prognosIs IS for the perSIstent
symptoms for several months further and long term prognosIs IS
guarded. She IS at nsk for expenencmg chromc or permanent
symptoms of neck and thoracIc and lumbar pam. With ongomg
symptoms at 10-11 months from the mJury whIch appear to be
Claim #44089 12
preventmg successful return to work, It IS very possIble that she wIll
expenence permanent restrIctIons preventmg return to work as a
correctIOns officer
DIsabIlIty:Mrs. S G IS not totally dIsabled from performmg part of
her job but her current complamts are conSIstent WIth her potentIally
not bemg able to manage altercatIOns wIth Inmates, searches and
emergencIes and m that sense, If she cannot perform those essentIal
tasks, then It would be reasonable to consIder her totally dIsabled
from performmg her former occupatIOn.
In summary, Mrs S G presents as havmg sustamed a mIld antenor
wedge compreSSIOn fracture of T12 whIch has healed and presently
wIth cervIcal, thoraCIC and lumbar pam. She has a multItude of
subjectIve complamts, physIcal findmgs whIch are entIrely
subjectIvely OrIented, no objectIve eVIdence of senous physIcal InjUry
or dIsabIlIty apart from the healed T12 fracture MultIple varIables
determme when and If an IndIvIdual returns to theIr pre-MY A actIvIty
level m terms recreatIon and work, mcludmg pam threshold, effort
and motIvatIOn, finanCIal dIsmcentIve and secondary gam. Ms S G IS
now four months pregnant wIth twms, whIch further complIcates her
assessment. Even absent any of her current musculoskeletal
complamts and the chances of her returnmg to work before the end of
her pregnancy would approach ml She may experIence aggravatIOn
of her cervIcal, thoraCIC and lumbar complamts as her pregnancy
progresses but followmg delIvery, any exacerbatIOn would be
expected to resolve With or wIthout her musculoskeletal complamts,
It IS dIfficult for me to predIct what her chances of returnmg to work
after the pregnancy would be, wIth twms to care for
Ms. S G saw Dr PC, a specIalIst m PhYSIcal MedIcme and RehabIlItatIOn,
for an mdependent medIcal evaluatIOn three months after she gave bIrth to
one chIld. That comprehensIve report was requested by the car msurance
consultants and was dated November 1, 1996 Dr P C stated, m part.
15 SummaryMs. S G IS a 34 year old woman who was mvolved m
two motor vehIcle aCCIdents The first one was on February 25, 1995
and the second on March 20, 1995 After the first motor vehIcle
Claim #44089 13
accIdent she apparently sustamed a T12 vertebral fracture whIch she
reports was mIssed for several weeks but thIS IS not confirmed by any
of the documentatIOn whIch I revIewed. Her symptoms have largely
consIsted of low back pam, neck pam and headaches and InItIally she
had abdommal dIscomfort whIch IS no longer a promment symptom.
Ms. S G worked for SIX days after her first motor vehIcle accIdent
before symptoms of severe low back pam precluded her from
contmumg to work. Smce the tIme of her motor vehICle accIdent she
has receIved a multItude of therapIes mcludmg physIOtherapy at the
CanadIan Back InstItute, chIropraCtIc care whIch IS stIll ongomg,
hydrotherapy, massage therapy and she has been very actIve m domg
stretches on her own. Ms. S G was a body-buIlder and aerobIcs
mstructor m addItIOn to worlang as a CorrectIOns Officer pnor to the
accIdents Ms S G reported that many of her symptoms are better
than what they were, but she stIll has sIgmficant pam m her low back
regIOn and to a lesser extent her neck. She also has some mtermIttent,
penodIc mIld symptoms of left knee dIscomfort and headaches m
assocIatIOn WIth severe neck pam. She has been dIagnosed WIth soft
tIssue mJunes m the past m addItIon to havmg been dIagnosed WIth a
healed T12 vertebral fracture. She has undergone a functIOnal capacIty
evaluatIOn whIch concluded that she could perform her regular dutIes
but a Judgement could not be made regardmg her abIlIty to handle
emergency SItuatIOns whIch anse penodIcally m the course of her Job
It was also remarked In her functIOnal capacIty report that there were
some mconsIstencIes reported over the two days of testmg and some
lack of phYSIcal behavIOurs whIch would be consIstent WIth maXImal
effort. 16 ImpressIOnCervIcal and lumbar regIOn mechanIcal back
pamPossIble facet of left L5-sacral artIculatIOn mflammatIOnMIld left
patellofemoral syndrome of the kneeBased upon my reView of the
avaIlable documentatIOn and my exammatIOn I do not feel that there
IS eVIdence of any nsk factors of pre-eXIstmg phYSIcal Illness
contributed to Ms S G ' s current status. I feel that Ms S G suffered
a moderate mJury to her para-lumbar and para-cervIcal soft tIssues
and possibly her facets as a dIrect result of her motor vehIcle
accIdents resultmg in symptoms of pam but at the tIme of my
assessment she was found to have only mImmal ObjectIve eVIdence of
ImpaIrment. It IS also my ImpreSSIOn that there are sIgmficant
psychoSOCIal factors present whIch are lIkely lImItIng Ms S G's
deSIre to return to her prevIOUS pOSItIon of employment. 17 SpecIfic
Claim #44089 14
QuestIOnsDoes Ms. S G presently possess the physIcal capabIlItIes to
perform her pre-MY A Job as a JaIl guard?Based upon my assessment
and reVIew of Ms. S G ' S functIOnal capacIty evaluatIOn from the
CanadIan Back InstItute I feel that Ms S G would be able to perform
some of the dutIes assocIated wIth bemg a J all guard, however she
would lIkely not be able to cope wIth the penodIc emergency
SItuatIOns whIch occasIOnally anse whIch would reqUIre more Intense
actIvIty on her part (eg breakmg up altercatIOns between Inmates and
other SImIlar sItuatIOns) Thus I do not feel she possesses all the
phYSIcal capabIlItIes to be a JaIl guard. However, a work hardemng
program may be beneficIal to help her attam adequate endurance
levels to perform the dutIes whIch would be reqUIred. GIVen Ms.
S G 's hIgh motIvatIOn level to be pam-free coupled WIth her prevIOUS
and current actIve phYSIcal lIfestyle I feel that her prognOSIS IS
excellent for attammg the phYSIcal capacIty to return to full tIme
work. I do not feel that she has qUIte reached maxImal medIcal
recovery However, It IS my ImpreSSIOn that Ms. S G 's motIvatIOn to
return to her prevIOUS employment IS not great gIven her stated
mtentIOns to become mvolved m evangelIcal preachmg.
RehabIlItatIOn consultants were retamed m thIS matter In a letter dated
November 29, 1996 the consultant responsible for Ms. S G 's case wrote
to Dr G.K. followmg a meetmg between the two A summary of the
meetmg was put to Dr G.K. The summary stated, In part, as follows
. You mdIcated that you agreed WIth Dr PC's opmIOn that Ms.
S G could perform the dutIes of a Customs Clerk, Pnvate
InvestIgator, or Customs Guard.
. You mdIcated that you dId not agree WIth Dr PC's opmIOn
that mdIcated Ms SG could resume her pre MYA
employment as a JaIl Guard subsequent to the completIOn of a
work hardemng program.
. You mdICated that Ms. S G remams m excellent phYSIcal
condItIon WIth regards to her strength and stamma however you
feel she should contmue to aVOId SItuatIons whIch could result
m addItIonal trauma to her back mJunes such as an altercatIOn
whIch IS lIkely to occur whIle performmg the dutIes of a JaIl
Guard.
Claim #44089 15
. You dId agree that at thIS tIme, It would be approprIate to
dIscontmue massage therapy
. You confirmed that your last VISIt WIth Ms S G took place on
November 11, 1996 You mdICated that at that tIme, Ms S G
had experIenced a fall at home and was havmg ongomg
dIfficulty wIth low back pam. You also confirmed that Ms.
S G IS not takmg any medIcatIOn at thIS tIme
. You mdIcated that Ms. S G contmues to mdIcate to you that
she IS not mterested m pursumg other employment m her
related field and contmues to state her desIre to pursue
vocatIOnal actIvItIes along wIth her husband m the RelIgIOus
field.
On March 15, 1997 Dr G.Z stated m her attendmg physICIan'S statement
that the claImant was suffermg from "severe low back pam, also severe low
abdommal pam (dIagnosIs not made yet)" She noted that It was unknown
when Ms. S G would be able to work at her own or any other occupatIOn.
On Apnl 22, 1997, Ms S G was assessed by a RegIstered Nurse employed
by Olsten KImberly QualIty Care In her report, a number of comments were
made of mterest.
. Frequently changed posItIon when sIttmg durmg the mtervIew; stood
up and stretched several tImes dunng the mtervIew whIch lasted 2
hours GaIt was even and steady No ambulatory aIds have been or are
beIng used other than orthotIc shoe mserts whIch she finds very
benefiCIal and uses dally
. Stated she has a back brace whIch she uses occasIOnally when she
needs extra "support"
. ClaImant was extremely cooperatIve and fnendly, and appeared
brIght and happy Stated that the aCCIdent forced her to look at her lIfe
and reaSSIgn pnontIes Spoke frequently about God and the changes
she has made m her lIfe because of hIS mterventIOn.
Claim #44089 16
. Described husband as very helpful - he does the heavy cleamng,
mcludmg the vacuummg and laundry ClaImant does lIght
housework: dustmg, dIshes, meal preparatIOn.
. DespIte frequent and vIgorous chIropractIc and exerCIse therapy,
debIlItatmg symptoms persIst.
. Stated that physIcal condItIon has Improved smce the accIdent but has
notIced thIS Improvement only m retrospect. Rated self as takmg "2
steps forward and 1 step back" Stated that at present tIme she IS
feelIng lIke she has recovered as much as she IS gomg to Stated that
physIcIan mdIcated she mIght have fibromyalgIa caused by the
accIdent and that she would not see much more physIcal
Improvement.
. Stated that she complIes wIth all therapIes and IS WIllIng to "do what
It takes" to get "better"
. Stated that gets up m the mornmg, stretches, showers and gets
dressed. She then works out or goes for a walk, makes lunch, goes to
the gym to work out wIth lIght weIghts (5 - 10 lbs), then runs errands
wIth her husband (grocery shoppmg, doctor) Returns home to make
supper, then spends the evemng m a vanety of ways - VISIts famIly,
relaxes at home, goes to church.
. Has not dIscussed return to work wIth physIcIan. ClaImant does not
see herself returnmg to work m the near future as condItIon does not
yet warrant It.
. Has not dIscussed possibIlIty of returnmg to work on modIfied dutIes,
but does not feel ready at thIS tIme
On August 12, 1997 Dr G.Z responded to questIOns from ManulIfe In thIS
letter she dIsclosed that the claImant had agam become pregnant and, as a
result "the pam m the low back IS gettmg more severe WIth muscle spasms"
She mdIcated that Ms S G was "totally dIsabled to go back to ongmal Job
as a correctIOnal officer m the Windsor JaIl She has to find sUItable work If
she IS recovermg from the present symptoms. Her pregnancy defimtely
restncts the therapy or exerCIse"
Claim #44089 17
I was provIded wIth vIdeo surveIllance of the claImant's actIvItIes dunng a
five day penod from September 11, 1997 to September 15, 1997
On November 13, 1997 ManulIfe wrote to the claImant mformmg her that
her benefits would be termmated on December31, 1997 Part of that stated.
MedIcal mformatIOn from Dr PC dated November 1, 1996,
concluded that you would be phYSIcally capable of performmg the
dutIes of Jobs such as Customs Officer, Customs Clerk or ProbatIon
Officer He noted that you would be able to tolerate the standmg,
sIttmg and walkmg reqUIrements of these Jobs provIded that you are
able to frequently change pOSItIOn. It was also noted that you would
be capable of performmg some of your prevIOUS dutIes, however you
would lIkely not be able to cope WIth emergency SItuatIOns
A report from Dr G.K dated August 12, 1997, states that you were
expenencmg severe low back pam, shoulder and neck pam, and that
you were 8 weeks pregnant. Your lImItatIOns WIth regard to work
actIvItIes were lIsted as an mabIlIty to lIft or bend. Dr G.K. mdIcated
that whIle you would not be able to return to your Job as a
CorrectIOnal Officer, you would have to find sUItable work when you
recover from your present symptoms
We have conducted an extenSIve mvestIgatIOn mto your actIvItIes
ThIS mvestIgatIOn shows that your present level of phYSIcal abIlIty IS
mconsIstent WIth the descnptIOn of your symptoms. You were
observed to partake m VIgorous actIvIty whIch mcluded pushmg and
pullIng a chIld on swmgs, lIftIng the chIld, flexmg forward, bendmg
and walkmg WIth the chIld, and clImbmg whIle holdmg the chIld.
Dr G.K. stated that you pregnancy restncts therapy or exerCIse,
however your actIvItIes reveal that you are phYSIcally actIve and you
also attend a fitness centre regularly
On November 24, 1997 Ms SG was admItted to hospItal to have a
laparoscopy performed because she had an ectopIC pregnancy In the
medIcal hIstory taken at the tIme of her admISSIOn It was stated that her last
menstrual penod was September 15, 1997 There were no complIcatIOns
Claim #44089 18
from thIS surgery In March of 1998 she had a spontaneous pregnancy loss
that dId not reqUIre any surgIcal mterventIOn.
The next notatIOn m Ms S G 's file IS from an obstretncmn dated January
I
21, 1999 wherem It IS noted that she IS 12 weeks pregnant. In a post partum
report wntten on October 4, 1999 there IS no mentIOn of any complamts of
pam from any source
No doubt as a result of the fact that the ongmal mJunes resulted from two
MY As, there was ongomg correspondence wIth another msurance company
I was prOVIded wIth that InformatIOn. On February 27, 2000 a qualIfied
chIropractor saw the claImant and wrote a report that mcluded the
followmg
ClImcal ImpreSSIOn
Ms S G presented m an honest and straIghtforward manner She was
pleasant and co-operatIve dunng the assessment. She was 5'3" tall
and weIghed 129 pounds. She had a conSIstent complamt m the
sacrOIlIac area bIlaterally Her ranges of motIon are acceptable It
appeared she had been an athlete m the past. We dIscussed the need
to make the tranSItIon from paSSIve care to an actIve exerCIse
program. Ms SG was worrIed about hurtmg herself and
apprehenSIve about returnmg to her former exerCIse regIme We
dIscussed whIch exerCIses would be safe to begm WIth and how
qUIckly she should buIld up to her regular program. Her workouts
should conSIst of a regular program for approXImately 3 to 5 hours a
week.
As the result of benefits prOVIded from the car Insurance company Ms. S G
attended five tImes weekly at "FItness Forum" from March 24, 2000 to
Claim #44089 19
September 19, 2000 when her membershIp expIred. In addItIon she attended
a chIropractor on a regular basIs durmg both 1999 and 2000
In accordance wIth the practIce of the partIes, pnor to the heanng mto thIs
matter the claImant was gIven an opportumty to see the vIdeo surveIllance
referred to above There was a personal statement, a response to ManulIfe
and a statement of response to the VIdeo surveIllance wntten by Ms S G
subsequent to that vIewmg. I have thoroughly read those documents
Ms Cook, for the Umon, asserted that at the pomt the claImant was
approachmg the end of the thIrty month penod of entItlement for a total
dIsabIlIty from her own occupatIOn, her famIly practItIOner made clear that
Ms SG was expenencmg pam and contmued to be unable to work.
Further, there IS nothmg m the file that refutes Dr G.K.'s contentIOn that the
gnevor IS wholly dIsabled. It IS also worthy of note that the claImant's
chIropractor stated m hIS February 27, 2000 report that "It would be
reasonable m thIS case to contmue chIropractIc treatment for a further 24
VISItS on a schedule of approXImately once a week, m conjUnctIOn WIth the
above outlmed actIve rehabIlItatIOn program" He went on to suggest that
"wIth steady progress, the patIent WIll reach her maXImum chIropractIc
Improvement by August 3,2000"
Ms MurJI, for the Employer, took another VIew It was urged that at the
pomt of Dr PC's report, that IS, November 1, 1996, other occupatIOns
wIthm the claImant's abIlItIeS were recogmzed. He stated that she was
already able to return to her own work except for "her abIlIty to handle
Claim #44089 20
emergency sItuatIOns whIch anse penodIcally m the course of her Job" He
also noted vanous mconsIstenCIeS that were present m the functIOnal
abIlItIes testmg the claImant had undergone Regardmg the reports from Dr
G.K., It was suggested that her reports are not substantIated by any other
eVIdence Indeed, the other varIOUS reports were to the contrary
DECISION
In order for thIS appeal to succeed, the claImant must be found to be "wholly
and contmuously dIsabled by Illness or accIdental bodIly mJury whIch
prevents her from performmg the essentIal dutIes of any occupatIOn for
whIch she may be reasonably fitted by educatIOn, trammg or expenence"
It IS not unusual m these matters for the partIes to engage m a debate as to
whIch medIcal professIOnal's opmIOn IS the most relIable It IS sometImes
suggested that the famIly practItIOner IS the person who best knows the
claImant over tIme and has the greatest advantage to see 'progress or the lack
thereof. OccasIOnally It IS contended that a phYSICIan wIth a more
specIalIzed knowledge, one who IS not as close to the claImant, IS better
eqUIpped to gIve the key opmIOn. In other mstances, one party relIes heavIly
on the VIew of an mdependent medIcal practItIOner It has been my
expenence that there SImply IS no hard and fast rule m thIs regard. Each
case IS fact dependant and each must be consIdered on an mdIvIdual basIs.
Further, there are many factors to take mto account m determmmg whIch
phYSICIan has provIded the more persuaSIve mformatIOn. SometImes the
most credIble medIcal analYSIS comes from the phYSICIan wIth the most
Claim #44089 21
specIalIzed credentIals because she IS m posseSSIOn of partIcular and
relevant knowledge. In other mstances It IS the physIcIan who has had the
most expenence wIth the claImant who can provIde the most mformed
overall medIcal VIew Fmally, from tIme to tIme the analYSIS of an
mdependent physIcIan who gave an unbIased and well documented report
can provIde mSIght apparently not gamed elsewhere Each case wIll be
determmed on the totalIty of the eVIdence
It IS the task of the ChaIr to read every medIcal opmIOn avaIlable coupled
wIth other documentatIOn and attempt to assess whIch VIew IS the most
probable and convmcmg. ThIs IS not a sImple exerCIse
In thIS matter, I have found the reports of Dr G.K. unhelpful because they
were at odds wIth other health care professIOnals who assIsted the claImant
m thIS matter For example, m the March 15, 1997 attendmg physIcIan
report, Dr G.K. stated that Ms. S G was stIll "suffermg from severe low
back pam" However, m the report wntten some four weeks later by a
RegIstered Nurse, some of whIch IS excerpted above, the claImant herself
reported that her phYSIcal condItIon had Improved and her lIsted dady
actIVItIes were not mSIgmficant. It IS dIfficult to reconcIle those two
documented statements.
In my vIew, thIS appeal must be dIsmIssed. There IS nothmg contamed m the
medIcal mformatIOn that supports the VIew that the claImant IS wholly and
contmuously dIsabled from performmg the essentIal dutIes of any
occupatIOn for whIch she IS reasonably SUIted. Indeed, both Dr GJ.K. and
Claim #44089 22
Dr P C were earlIer of the VIew that Ms S G could have returned to her
own occupatIOn but for her havmg to be able to handle unforeseen
emergency sItuatIons whIch mIght mvolve physIcal altercatIOns
In arrIvmg at thIS decIsIon I found the mmutes taken of the meetmg held on
November 29, 1996 between a car msurance consultant and Dr G.K.
helpful Durmg that meetmg Dr G.K. agreed the claImant could work at
other occupatIOns but she was concerned about the "emergency" SItuatIOns
that Ms. S G mIght encounter m her own occupatIOn. Dr G .K. also saId
that the claImant was stIll havmg "ongomg dIfficulty wIth low back pam"
but she was not reqUInng medIcatIOn.
There were no further phYSIcal changes other than the claImant's second
pregnancy followmg thIS meetmg. Therefore, It IS dIfficult to determme why
Dr G.K. stated m her August 12 1997 letter that Ms S G IS "not able to go
to work at the present tIme"
As mentIOned above, a vIdeo surveIllance was part of the eVIdence provIded
m thIS matter The claImant had an opportumty to reVIew the VIdeo and
provIde comments whIch I have read and consIdered. The VIdeo
surveIllance was undertaken a few weeks after Dr G.K.'s August 12, 1997
letter outlImng Ms S G 's "severe low back pam, shoulder, and neck pam"
It IS not my mtentIOn to reVIew all of the actIvItIes seen over the three day
penod. It IS sufficIent to say that I am of the VIew that the claImant's
actIvItIes, length of sustammg those actIvItIes and the flUIdIty of her
Claim #44089 23
movements throughout are not compatIble wIth a findmg of "severe low
back pam, shoulder, and neck pam"
The claImant receIved benefits for a thIrty month penod, from September 8,
1995 untIl December 1997 At that tIme m order to contInue receIvmg
benefits she had to meet the test of bemg wholly and totally dIsabled from
any occupatIOn for whIch she was reasonably sUIted. As stated above, none
of the eVIdence provIded at that tIme support the claImant's VIew Further,
none of the documents provIded that post date the defimtIOn change that
would lead me to find that the appeal should be upheld. WhIle I apprecIate
the comments from Ms. S G ' s chIropractor statmg that she should have
further weekly treatments and that she had not yet reached her maXImum
Improvement I cannot find that she IS totally dIsabled from performmg the
essentIal dutIes of any occupatIOn.
Dated m Toronto thIS 5th day of July
FelIcIty D Bnggs
Claim #44089 24