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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