HomeMy WebLinkAbout2016-1901.Union.18-08-07 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2016-1901
UNION#5547615
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
- and -
The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Felicity D. Briggs Arbitrator
FOR THE UNION Jackie Crawford
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Regina Wong
Treasury Board Secretariat
Counsel
HEARING
April 18, 2018
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Decision
[1] The claimant, Ms. K, has filed an appeal regarding the denial of continuing Long
Term Disability Benefits. In accordance with the terms of the Collective Agreement
and Terms of Reference agreed upon by the parties, this matter has been though
the JIBRC (Joint Insurance Benefit Review Committee) process. After a failure to
agree upon a resolution between themselves, the parties brought the dispute to
hearing.
[2] It makes sense to first set out the terms of the Collective Agreement and the Terms
of Reference. Those are set out as follows:
Article 22 – Grievance Procedure
Article 22.9 – Insured Benefits Grievance
22.9.1 An allegation that the Employer has not provided an insured benefit
that has been contracted for in this Agreement shall be pursued as a
Union grievance filed under Article 22.13 (Union Grievance).
1. Any other complaint or difference shall be referred to the Claims
Review Subcommittee of Joint Insurance Benefits Review Committee
(JIBRC), established under Appendix 4 (Joint 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 Joint Insurance Benefits Review
Committee.
2. Purpose of Committee
The purpose of this Committee is to facilitate communications between the
Employer and the OPSEU on the subject of Group Insurance, including
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 included in the Group
Insurance Plane.
It is understood that the Group Insurance benefits to be provided to
employees and the cost sharing arrangements between the Employer and
its employees shall be as set out in any applicable collective agreement or
arbitration award, and the matters for consideration by this Committee shall
be only as set out in these terms of reference.
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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 in total. At meetings of the Committee, each party may be
accompanied by an Actuary to provide technical advice and counsel.
4. Duties of the Committee
The duties of the Committee shall consist of the following:
- Development of the specifications for the public tendering of any negotiated
benefits which may be included in the Group Insurance Plan (to cover the
bargaining unit only);
- Determination of the manner in which the specifications will be made
available for public tendering;
- Consideration and examination of all tenders submitted in response the
specifications for tender and preparation of a report thereon;
- Recommendation to the Government of Ontario on the selection of the
insurance carrier or carriers to underwrite 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 existing administrative
procedures.
The specifications for tender will describe the benefits to be provided, the
cost sharing 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 reporting
requirements. Tenders shall be entertained by the Committee from any
individual insurance carrier acting solely on its own behalf. This shall not
preclude such carrier from arranging reinsurance as may be necessary.
The basis for recommendation of an insurance carrier(s) will include the
ability of the carrier(s) to underwrite 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
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(a) There shall be a subcommittee whose mandate is to review, and
make decisions on, complaints or differences involving the denial of
insured benefits under the Central Collective Agreement, when such
issues have not been resolved through the existing administrative
procedures, save and except a complaint or difference arising 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 independent third party who is agreed to
by both parties.
(b) Appropriate impartial medical consultants shall be available to the
subcommittee in an advisory capacity to provide information on the
nature of specific illnesses or disabilities.
(c) Membership on the subcommittee shall be for one (1) year period,
and is renewable at the discretion of the nominating party, or parties
in the case of the renewal of the term of the independent third party.
(d) Decisions of the subcommittee are final and binding.
(e) The fees and expenses of the medical consultants referred to in
clause (b), and the independent third party referred to in clause (a),
shall be divided equally between the Employer and the Union.
Article 42 – Long Term Income Protection
Total disability means the continuous inability as the result of illness, mental
disorder, or injury of the insured employee to perform the essential duties of
his or her normal occupation during the qualification period, and during the
first twenty-four months of the benefit period and thereafter during the
balance of the benefit period, the inability of the employee to perform the
essential duties of any gainful occupation for which he or she is reasonably
fitted by education, training or experience.
Subsequent to the signing of this collective agreement the parties negotiated
and signed terms of reference regarding the establishment of a
subcommittee to deal with disputes between the parties regarding Long
Term Income Protection (hereinafter referred to as “LTIP”). That
memorandum stated:
JIBRIC CLAIMS REVIEW SUBCOMMITTEE
TERMS OF REFERENCE
AUTHORITY:
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The JIBRC subcommittee is established under Article 22.9.2 and Appendix
4 of the collective agreement between The Crown in Right of Ontario and
the Ontario Public Service Employees Union.
PURPOSE OF SUBCOMMITTEE
To review and make decisions on appeals from employees on claims
involving the denial of insured benefits under the collective agreement which
have previously been removed from JIBRC.
REFERRAL TO THE SUBCOMMITTEE
Employees with claims that have been removed from JIBRC will be notified
of such, in a timely, manner by letter (referred to as the “Notice Letter”) to
their last known address.
An employee whose claim has been removed has 45 days, from the date of
the notice letter, to submit a request in writing to OPSEU asking 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 in 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 binding.
Upon receipt of the decision, a Memorandum of Settlement (as attached) will
be prepared and signed by the parties and forwarded to the insurer.
SUBCOMMITTEE MEMBERSHIP:
The subcommittee will consist of resource representatives from OPSEU and
MBS and an independent third party “Chair” to be named by MBS and
OPSEU.
ROLE OF THE CHAIR
To review case representations from MBS and OPSEU.
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To make a determination in writing with respect to each case. Decisions must
be in accordance with the OPS Collective Agreement between the Employer
and OPSEU and consistent with the group insurance plans in place at the
time facts giving rise to the dispute arose.
ROLE OF MEDICAL CONSULTANTS
Appropriate impartial medical consultants will be agreed by the parties and
shall be available to the Subcommittee in 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 information on the nature of specific
illnesses or disabilities.
The Chair may request an interpretation of medical reports, test results and
other medical documentation on file.
The medical consultant is not a member of the committee and will not provide
an opinion 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
supporting documentation upon which they intend to rely. This disclosure will
take place at least two weeks in advance of the meeting of the subcommittee
dealing with the subject matter of the appeal.
If the Chair requires clarification of medical evidence, a meeting 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 jointly present a statement of agreed upon facts (to
the extent possible) for the appeal to the Chair.
Aside from the impartial medical consultant discussed above, no other
witnesses will be called, except by request of the Chair. However, the
individual claimant will be allowed to file a written statement in lieu of
testifying. If the individual claimant chooses to file a statement it must be
provided to the Management Co-Chair of JIBRC at the same time as
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OPSEU’s request for appeal. MBS has the right to introduce a written
response to this statement.
OPSEU will present its position on the case with supporting arguments to
the Chair. MBS will present its position on the case with supporting
arguments to the Chair and will respond to OPSEU’s position. OPSEU will
have right of reply. Presentation by both parties will be based upon the
information/record on file before the insurance 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 meeting as an observer only.
The Chair will render a written decision with supporting rationale.
FREQUENCY OF MEETINGS:
On an as needed basis as determined by MBS and OPSEU jointly.
The parties agree to these Terms of Reference in support of the implementation of
Article 22.9.2 and Appendix of the collective agreement.
[3] The parties agreed to a partial statement of fact in this matter. Those facts are:
• Ms. K has been an employee of the Ontario Public Service since April 10, 2000.
She worked as an Oversize/Overweight Permit Issuer in the Ministry of
Transportation.
• Ms. K’s date of birth is February 17, 1954.
• Ms. K has been absent from the workplace since September 27, 2011. Her
date of disability is September 28, 2011.
• Ms. K was in receipt of STSP benefits until March 28, 2012.
• From March 29, 2012 until March 28, 2014, Ms. K was in receipt of LTIP
benefits.
• The change of definition was scheduled to change from “own occupation” to
“any occupation on March 28, 2014.”
• On March 25, 2014, Manulife informed Ms. K of their decision to terminate her
benefits on the basis that she was not totally disabled from performing any
occupation. Ms. K was informed that Manulife would terminate her LTIP claim
in 3 months.
• Ms. K continued to receive LTIP benefits until June 25, 2014.
• Ms. K filed an Appendix 5 appeal form dated April 9, 2014 to initiate the Joint
Insured Benefits Review Committee (JIBRC) appeals process with respect to
the termination decision.
• The 45-Day Notice letter was issued to Ms. K on September 15, 2016.
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• The claim was referred to the Grievance Settlement Board for a hearing of the
Claims Review Subcommittee on November 10, 2016.
• Ms. K has been in receipt of Canada Pension Plan Disability Benefits since
March 1, 2012. An overpayment of $13,981.91 for the period March 2012 until
April 2013 was paid to Manulife, by a cheque from CPP for $13,178.73 on May
22, 2013 and by a deduction of $803.18 from Ms. K’s June 2013 LTIP benefit
payment.
• Ms. K claims that she is entitled to benefits for the “any occupation” period from
June 26, 2014 to the present.
[4] In a case management action plan note, Manulife described the claimant’s position
to be sedentary in nature. It was said that the job “requires her to provide
information and advice with respect to the issuance of Oversize/overweight
Permits; to issue permits, within specified approval limits, authorizing the operation
of vehicles and loads exceeding the size and weight limits as prescribed by the
Highway Traffic Act in addition to providing information to clients. She is required
to collect fees for permits from clients, data entry, verifying accuracy of info etc.”
[5] It is useful to set out portions of the letter sent to the claimant denying the
continuation of her long term disability benefits on March 24, 2014. It states, in
part:
In order to be eligible for LTIP Benefits, you need to meet the definition of
total disability outlined in your group contract. The definition is:
“…..for the first 30 months of total disability, an employee is wholly and
continuously disabled by illness or accidental bodily injury which prevents
him/her from performing the essential duties of his/her normal occupation.”
After the first 30 months, an employee is eligible for continued LTIP benefits,
“if he/she is unable to perform the essential duties of any occupation for
which he/she is reasonably fitted by education, training or experience.”
To determine whether or not you meet the disability definition the following
was considered:
• Medical examination findings, test results, and your symptoms and
limitations
• Whether medical restrictions are supported by the medical
information on file
• The physical and mental requirements of the any occupation
• Your training, education and work experience
• And how your medical condition affects your ability to work in any
occupation
………
Medical Overview
Based on the information we have on file, you ceased work as of September
28, 2012. You are receiving appropriate treatment and consulting your
family doctor, Dr. A, and physiotherapist, Ms. K.T. you also consulted Ralph
Centre for Pain Management Clinic and were seen by orthopaedic specialist
Dr. B. and neurosurgeon Dr. C.
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According to the initial attending physician statement completed by your
family doctor, Dr. A., dated February 12, 2012, you were assessed having
L5-S1 Nerve entanglement secondary to severe facet arthritis with marked
disc degeneration and intervertebral foraminal narrowing. We also received
a copy of the CT scan findings dates October 30, 2011. CT of the lumbar
spine demonstrating advanced disc degenerative disease with severe left
neuro foraminal narrowing and possible impingement of the left exiting
nerve root at L5-S1. You were prescribed with Lyrica 150mg and attended
chiropractic manipulation, physiotherapy, acupuncture and you were
referred to a pain clinic. On you (sic) claimant statement dated February 15,
2012, you reported being unable to sit at any length of time and you are
expecting to return to work after 3-6 months.
You also consulted Dr. B., orthpaedic specialist for a consultation. He
recommended physiotherapy in addition to receiving pain management
treatment via the Ralph Centre Pain clinic. You received nerve block
injection starting February 15, 2012 at the Ralph Centre for pain
management for 3 times with some improvement.
Recent MRI lumbo-sacral spine (5/21/2013) showed L-5 to S-1 disc spaces
with prominent left paracentral disc protrusion which has progressed
compared to prior examination. Also, showing marked narrowing of the left
lateral recess displacing, or impinging left traversing S-1 nerve roots. There
is no spinal stenosis but with mild left foraminal stenosis. The impression is
mild multi-level degenerative disc disease at lumbo-sacral spine findings
most marked at L5 to S-1 and with some progression noted.
As Dr. B. has retired, you were eventually referred to neurosurgeon, Dr. C.
and were seen in October 2013 indicating your case is nonsurgical and to
continue with pain management program for discogenic back pain.
According to physiotherapist Ms. K.T. dated November 15, 2013, your
function has improved and you are able to walk on even surfaces with a
cane for 15-20 minutes as tolerated and standing in one place no longer
than 5 minutes. You have to avoid lifting and carrying and avoid prolonged
sitting no more than 30 minutes at a time. Your physiotherapist suggests
this is a temporary restriction. Moreover, it was reported that your sitting,
walking and standing tolerance was increased by around 75% along with
your core strength/stability. You experienced symptom relief and
recommended to continue with your physiotherapy. Your physiotherapy
sessions were decreased from once a week to once every two weeks with
improvement on your condition. You are being managed conservatively and
upon your recent rheumatology consultation, you informed (sic) that the only
recommendation was a medication shift from Meloxicam to Celebrex.
We were also provided with electrophysiological studies of your upper
extremities dated 17/09/13 by Dr. T., after trial of nighttime splinting for both
wrists and indicated for management of mild carpal tunnel syndrome. Your
median nerve deficits have now resolved and no further testing is needed.
Dr. T. also suggested conservative treatment for your leg symptoms.
On your activities of daily living questionnaire in November 2013, you are
unable to do heavy lifting and carrying. You are also unable to bend along
the waist but generally are able to perform activities that are waist high. You
are not housebound as you have the ability to shop for groceries, able to
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travel by car sitting 10-15 minutes at a time, and able to visit relatives 1 – 3
times per week for 1 – 2 hours at one time. You can do household chores
(some cooking without oven use, laundry, washing the dishes etc.) with
some modifications on your working space and using assistive devices
(long handled devices, higher countertop, carrying/lifting in smaller loads).
You are able do (sic) personal care with no assistance, do night time walks
using a cane, watch television for 4 hours a day and listen to the radio 1
hour per day. These activities are beyond sedentary and are considered
light physical activities.
Based on our review, you have back restrictions of no heavier lifting and no
repetitive bending. Your restrictions could be the performance of activities
which involve twisting and bending of the lumbar spine, stooping and
crouching. You are able to sit, stand and walk on as tolerated basis. This
would not necessarily contraindicate return to sedentary type of job to
occasional light job as long as positional change is allowed as required and
provided with a proper ergonomic workstation. It may help to use straight
back seating and to change positions from sitting to standing every 30
minutes as required.
Given your restrictions and limitations, you are able to return to work at any
occupation that is sedentary with some light physical activities whether to
your own or an alternate employer of your choice. Through you have
residual symptoms, it does not preclude you from performing tasks that is
(sic) beyond sedentary that is required to perform your own occupation. It
is our opinion that there is no current medical evidence to support that your
restrictions and limitations will prevent you from working on any occupation
based on your education, training and experience.
….
Summary Overview
Assessment of the medical and vocational evidence on file does not support
that you are totally disabled from any occupation as defined in your group
contract. As you do not meet the definition of disability, which is reported
as, “unable to perform the essential duties of any occupation for which you
are reasonably fitted by education, training and experience.”
[6] In August of 2011 the claimant injured her back while working in her garden and
was unable to straighten up. Her range of motion was affected and she
experienced significant pain. On November 23, 2011 she saw an orthopedic
surgeon who wrote a consult note to her family physician that stated:
Thank you for asking me to see Ms. K. She comes with back pain since
August 11, 2011. This occurred when she was doing a lot of stooping down
and working in her garden. This was followed by pain in her left leg to the
left foot. She went to see a chiropractor shortly after that. She saw him for
one month. He did manipulation but she did not get any relief. Then on
September 27, 2011, she saw you and you examined her and sent her for
x-rays of her lumbar spine and also a CT scan. She also went to
physiotherapy. She still goes twice per week for physiotherapy. She gets
some relief with her left foot pain which is almost completely gone. She
works for the Ministry of Transportation and stopped working on September
27th. This is because she sits all day at the computer and this causes a lot
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of pain in her back and down her left leg. Before a strong cough or sneeze
would increase her back and leg pain but not now. Pulling or opening a door
would increase her back pain, or even prolonged standing. Walking was
okay, but if walking for a while it would aggravate her back and leg pain.
She denies having any urinary or bowel dysfunction. She has been doing
some exercises at home. The shopping, vacuuming and housekeeping is
done mainly by her husband. He helps her to wash her feet and helps her
put her socks and shoes on.
I examined her today. She is a height 5’3” and weighs 178 lbs. She has a
lumbar lordosis of 50’, flexion 50’, extension 15’, lateral flexion and rotation
was normal. Knee and ankle reflex are normal to the right and left side. Her
right calf is increased by ½” in circumference as compared to the left. There
is negative bowstring sign behind the knees. Straight leg raising is 80’
bilaterally dorsiflexion and evertors of the foot and extensor hallicus longus
are normal in both feet. Her balance was good. Her knee and hip
examination was normal. She was able to stand and do push-off with her
both feet.
She had x-rays done showing severe facet arthritis at L5-S1 with marked
disc degeneration. There is marked intervertebral foramen narrowing with
large osteophyte at L5-S1 on the left side which would explain her leg pain
by causing entrapment of the nerve root at times. She had a CT scan done
showing on the L5-S1 disc bulge and facet arthritis with left neuroforaminal
narrowing.
Her problem is that she had entrapment of the nerve, severe facet arthritis
at L5-S1 mainly and less and the L4-5 level with marked foraminal stenosis
and large osteophytes which goes into the intervertebral foramen and
causes entrapment of the nerve. From my examination today she seems to
be in the recovery stage. She is not doing much work or activities at the
present time. I told her carry on with her active physiotherapy and gradually
phase back to work starting with shorter hours and work her way back to a
full day’s work. For now I think she is to wait and see and continue with her
physiotherapy. I was surprised how much facet arthritis that she has and
foraminal narrowing at the L5-S-1 level.
[7] In early 2012 the claimant began attending at the pain management clinic and
received a series of nerve block injections in an effort to reduce her level of pain
with varying degrees of relief.
[8] In a March 5, 2012 file note the case manager reviewed the claimant’s medical file
to date including planned activities and her position description. The claimant had
applied for LTIP and was approaching the LTIP commencement date. The case
manager also set out answers given by the claimant in a recent telephone
interview. In that file note the following was stated:
After carefully reviewing all the medical info provided in conjunction with
claimant’s report, it is not unreasonable for the claimant (age 58 yrs) to take
appropriate time off work for recommended treatment (for her provided
medical condition), which apparently is slowly reducing the reported pain
related symptoms. Dr. A. anticipated that claimant should recover
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sufficiently within a 3 – 6 month period which could very well be before LTIP
commencement date 29th March, 2012.
[9] On March 18, 2012 the claimant’s physician wrote the following report, in part, after
referring to enclosed information from two specialists seen by Ms. K:
Both physicians essentially agree with the diagnosis that was given to her
on her presentation to my office in September 2011. Whether you call it
sciatica, Lumbar radiculopathy, or entrapment of the lumbar nerve, all these
terms refer to a multifactorial process where age, arthritis, development of
bony spurs as in this patient, disc collapse, disc rupture, even congenital
formation may contribute to narrowing of the exit through which the nerve
must pass.
….
Ms. K is in significant pain, there is no doubt about that. Dr. B.’s consultation
outlines the degree of facet joint arthritis, that in itself causes pain, and then
the result L5-S1 neuroforaminal encroachment. ….
As far as I understand, this woman remains in rather significant daily pain
that precludes returning even to part time work. Because it is her back, it
affects her ability for endurance in standing, sitting, reaching, lifting,
pushing, pulling, i.e. almost all movements of the body. Now I have not seen
her since the epidural injection and she is booked April 2, 2012. Even if she
is “improved”, she has been sedentary for a long time which would have
further weakened her core. It might be best to have her physio do a brief
functional abilities assessment.
[10] A medical consultant reviewed the claimant’s file in April and wrote a consultation
on April 10, 2012 regarding whether to approve LTIP benefits for Ms. K. In that
note the medical consultant said, in part:
In my opinion, the claimant should be able to perform activities that are
sedentary in nature. Restrictions could be the performance of activities
which involve twisting and bending of the lumbar spine, stooping and
crouching. The claimant should be afforded the ability to use straight back
seating and to change positions from sitting to standing every 30-60
minutes.
Although the physiotherapist indicated that the claimant had limited seating
tolerance, my opinion is that the claimant should recover sufficiently to be
able to perform sedentary activities. My opinion applies in this regard even
is the claimant is going to have surgery.
The claimant has received appropriate treatment. However, as mentioned
above, if the claimant does not respond to conservative treatment he (sic)
may require spinal surgery to decompress the nerve root. However, this
does not mean that the claimant performing sedentary activities in the
interim (sic).
[11] On April 13, 2012 the claim manager again reviewed the claimant’s file including
the medical consultant’s views. According to the note to file dictated that day it was
decided that LTIP would not be approved because the “claimant should be able to
perform activities that are sedentary in nature.”
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[12] On April 19, 2012 the claim manager had a telephone interview with Ms. K to inform
her that her LTIP was being denied. However, as noted in the amended case
management action plan dated April 19, 2012, a decision was made to approve
LTIP. The action plan said, in part:
Claimant explained to case manager that she would not be able to return to
work despite the Employer’s ability to accommodate. Her pain related
symptoms have not improved and she finds it difficult doing activities on a
daily basis including dressing herself. Case manager reminded the claimant
that during the telephone interview of March 2, 2012, she reported that she
was able to function, however, not able to do stuff like vacuuming etc. She
said that she did not remember saying this to the case manager. Claim
manager told claimant that seeing that she is still reporting related
symptoms on daily (sic) and really does not feel that she would be able to
perform the essential duties of her own occupation, claim manager would
like claimant to provide more details (verbally) regarding her level of pain
symptoms and how the symptoms affect her on a daily basis from function
so that claim manager can obtain a better understanding of her overall
functionality etc. Claimant explained that she does get some relief after
physio treatments but when she tries to do activities like laundry, showering
etc. her pain symptoms increase. She said that her quality of life has
changed as a result of her pain related symptoms. Her GP has referred her
to see an ortho specialist, no date provided as yet. Will be having an MRI
done first.
Claim manager reconsidered the decision not to support the LTIP benefits.
Based on information provided by the claimant, the criteria for Total
Disability from own occupation is being met, as such, LTIP would be
supported.
[13] Accordingly, the LTIP benefits for the own occupation period began on March 29,
2012.
[14] On May 29, 2012 the claimant had an MRI and that report stated, in part, the
following:
Moderate facet hypertrophy identified at L5-S-1. Slight left-sided posterior
disk bulging also present. No central stenosis. Lateral recesses are patent.
This is bilateral foraminal narrowing, more pronounced on the left side.
Mild spondylosis with moderate facet hypertrophic changes are seen at L-
4-L-5. No central stenosis. No high-grade foraminal narrowing.
Impression – Degenerative spondyloarthropathy identified at L4-L5 as
described above.
[15] During the rest of 2012 the claimant was monitored by the claim manager. Ms. K
received treatments in an effort to alleviate her pain with some results. She also
was waiting for an appointment with a neurosurgeon which took an inordinate
amount of time to schedule.
[16] In 2012, as requested by the carrier, the claimant applied for CPP benefits which
were ultimately granted.
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[17] In January of 2013 the claim manager inquired from Ms. K’s family physician as to
her ability to return to work. On February 11, 2013 Dr. A. responded stating, in
part:
I do feel that there is a contraindication to Ms. K returning to work at this
time.
I referred this woman to Dr. C. He is a neurosurgeon and he will only see
those people whose charts and MRIs he has personally reviewed. Ms. K
was referred for intractable discogenic back pain and consideration for
surgery.
The difficulty remains that her assessment with Dr. C. is pending, in other
words, he has agreed to see her, but they have not given her an
appointment. She has been to a top of the line pain care centre.
Simply because the Ontario Health System has been unable to provide a
timely response to her concern DOES NOT mean that she is to be set aside
and considered for rehabilitation.
It would not be reasonable to start the return to work program in March
2013.
For the above reasons and the fact that the woman I saw was unable to sit
still, looked in moderate agony and certainly would be unable to participate
as one would need to in a working environment. She also advised me that
the improvement from the epidurals was very mild and made no real
improvement in her functioning.
I felt that it is premature to give a list of restrictions and limitations at this
time. It would not be part of any return to work program. This information
will come AFTER she sees the neurosurgeon and then if she is not a
surgical candidate, she would/should expect Functional Abilities
Assessment prior to return.
At this time, we should be continuing to concentrate on pain management
and improve functioning at home, not causing any worsening in that
environment as she awaits her neurosurgeon opinion.
[18] As a result of this view from Dr. A the claim manager decided to ask for another
medical review. In a memorandum, dated March 1, 2013, the physician stated,
after a review of the file noted the following, in part:
The most recent information provided by the family physician indicated that
she may be precluded from forming the essential duties of her customary
occupation because of her residual symptoms. However, it is not specifically
stated that the ongoing and abnormal physical findings contributing to this
reported severity of her symptoms and reported impact of her symptoms on
her ability to function.
I reviewed this file on April 10, 2012. At that time, my opinion was that the
performance sedentary activities which require twisting and bending of the
lumbar spine, stooping, crouching and medium to heavy strength demand
activities. At that time, it was my opinion that the accommodation required
would be for the claimant to change positions periodically from sitting to
standing etc. It was my opinion the claimant had received appropriate
treatment and that if she failed to respond to conservative treatment, she
could be a candidate for surgery.
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The claimant has received treatment. There has been some improvement
in the medical condition. On this basis it would be reasonable for the
claimant to return to work to perform sedentary light physical activities.
If return to work is considered, it would be reasonable to consider the
implementation of a graduated return to work for a period of time measuring
approximately 6 weeks.
[19] Following this medical review, the claim manager decided that she wanted an
update on the claimant’s condition before taking any further steps. After a
telephone interview with the claimant on April 8, 2013 the claim manager
determined the following after noting that the medical review confirmed that Ms.
K’s symptoms were in keeping with objective clinical findings:
Given the lack of any medical to support significant improvement in the PM’s
functional status, the correlation between medical and restrictions and
limitations, and the treating physician’s recommendations that the PM
requires a surgical consultation and FAE prior to considering a return to
work, we will continue to support the LTIP benefits while we await further
assessment of her medical status. Once received and reviewed we can
determine our ongoing management plans and assess change of definition.
[20] On May 18, 2013 another MRI was taken. The results of that imaging showed the
following, in part:
L1-L2 disc space level: Mild left paracental disc protrusion, no spinal canal
stenosis, no foraminal stenosis.
L2-L3 disc space level: there is no disc herniation, spinal canal stenosis or
foraminal stenosis.
L3-L4 disc space level: there is minima concentric disc bulge, no spinal
canal stenosis, no foraminal stenosis.
L4-L5 disc space level: there is mild concentric disc bulge, ligamentum
flavum thickening and facet osteophyte as, mild spinal canal stenosis,
bilateral mild foraminal stenosis.
[21] In a telephone interview with a new claim manager on October 22, 2013, the
claimant reported that she was continuing to attend physiotherapy and having
trouble with some activities of daily living. She said that she is not able to sit for
longer than twenty minutes and has difficulty standing to wash dishes. She was
continuing to experience constant pain to her lower back and both legs.
[22] On November 13, 2013 the claimant’s physiotherapist issued a report with an
overview of her care and progress. In that report she noted, “it is difficult to
anticipate completion of program as patient is currently still symptomatic and has
specialist appointment in the future. Although patient has had longstanding pain,
until further notice by specialist I would deem patient as having a temporary
disability.”
[23] As the change of definition was approaching (March 28 2014), further medical was
requested. Another medical file review was undertaken on December 6, 2013. In
that review the following was noted, in part:
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Date of disability September 20, 2011 without complete resolution of
symptoms and therefore do not agree with the physiotherapist that this is
temporary. She would have standard lower back restrictions of no heavier
lifting, no repetitive bending and to sit stand and walk as tolerated. This
would not necessarily contraindicate return to sedentary type job to
occasional light job as long as position change is allowed as required and
we have a proper ergonomic workstation.
There aren’t any absolute contraindications other than report complaints of
pain and the need for positional change.
I do not believe that there is any medical contraindications to starting a
functional vocational rehabilitation program or work activation program at
this time. She requires proper ergonomic setup of workstation primarily
sedentary work occasional light with positional change as required. If return
to work is contemplated it should be a gradual return to work within
tolerances. One should have vocational rehab assess the claimant for
potential gradual return to work. A yellow flag is time since date of disability
over 2 years ago.
[24] The claim manager then referred the file to their rehabilitation department to assist
the claimant to return to work. Ms. K. would not participate in a rehabilitation
program.
[25] At the change of definition date the claimant had a telephone interview with the
claim manager and in that conversation Ms. K denied that she was able to work at
a sedentary job. It was determined that her benefits would continue for a further
three months.
[26] On March 25, 2014 the claimant was sent a letter informing her that her benefits
would end as of June 25, 2014. The summary of reasons given for the benefit
denial were virtually identical to those set out in the medical review above. Also, it
was explained that according to the claimant’s report of her activities of daily living
she could return to work at a sedentary job.
[27] On April 9, 2014 the claimant wrote to the claim manager to lodge her “complete
disagreement” with the decision to terminate her benefits. She reported her
designation of “non-surgical” according to the neurosurgeon she saw and set out
what she considered to be a number of errors made by the carrier in its
determination.
[28] The claimant and the Union filed an appeal to the denial of benefits asserting,
amongst other things that in this instance there is virtually no difference between
the claimant’s own occupation and any occupation due to the sedentary nature of
the work.
[29] After initial reluctance, in April of 2015 the claimant undertook an Independent
Medical Review by a Physiatrist, Dr. W. In an 80-minute examination which
consisted of a file review, taking of the claimant’s medical history and physical
examination, Dr. W. found that the medical care that Ms. K had been given was
appropriate. In the physical examination of the claimant’s lumbar spine he noted:
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Lumbar spine range of motion was mildly reduced in forward flexion,
extension, rotation and lateral flexion. There were reports of pain during all
ranges of motion. Ms. K appeared to self-limit her active range of motion of
the lumbar spine in all directions secondary to pain.
Dr. W. was asked if there are any complicating factors that might impact the
recovery process. He said that Ms. K’s “pre-existing lumbar spine facet arthropathy
and degenerative disc disease with diagnostic imaging performed in 2013
suggestive of a left S1 radiculopathy. Clinical examination did not suggest an
active radiculopathy, with normal reflexes, muscle bulk and strength. EMG/Nerve
Conduction study performed in 2013 does not support a left S1 radiculopathy.” He
also found that her “lower back pain and left lower extremity pain, her subjective
symptoms during today’s clinical examination are supported by clinical pathology
as described on the provided diagnostic imaging.” He stated that there was “limited
sitting and standing tolerance both self-reported and observed of approximately 20
minutes” and that she had “self limited active range of motion of the lumbar spine
secondary to pain.”
[30] Over the period of this file, the claimant had other medical concerns such as
diabetes, carpal tunnel syndrome and adrenal gland enlargement. While that
information is noted appropriately in the material provided, nothing turns on those
issues.
[31] In its submissions, the Union noted that the claimant – and her medical record –
have been consistent regarding her main debilitating symptom, that is, unrelenting
pain. The MRI and CT Scan revealed that damage to her spine was degenerative,
meaning that it would not heal like other injuries. None of the health care
practitioners that examined or treated her ever suggested that her pain was
embellished. Indeed, the IME physician noted that due to the level of pain she was
careful regarding her range of motion.
[32] The Union noted that the claimant participated in all suggested treatment – from
physiotherapy to nerve block injections. While there has been some level of relief
with various treatments – she still could not return to work. In her personal
statement and as told to her claim manager during interviews, a number of
modifications were made to her home and her own activities of daily living due to
the level of pain she endures.
[33] The Union stated that the IME did not suggest that she could undertake sedentary
duties. What should have taken place in this instance is a functional abilities
examination to properly determine the level of her ability to do sedentary work.
[34] The Employer urged that Manulife made the proper decision by denying the claim
of total disability from working at any occupation. A thorough review of the various
documents was undertaken by counsel. It was suggested that the physiotherapist
report of November 15, 2013 set out restrictions that are congruent with an ability
to return to sedentary work. Further, her activities of daily living were such that
sedentary work was within her functional abilities.
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[35] The Employer noted that rehabilitation was offered to the claimant as was a
gradual return to work. Both were refused. Indeed, the claimant initially refused to
attend at the IME but eventually relented.
[36] The Employer also noted that the claimant saw a new family physician in late 2015.
In those clinical notes it is stated that Ms. K. is “ambulating freely”. This is a case
regarding subjective pain complaints but the issue before this Board is whether the
claimant is totally disabled from performing the essential duties of any occupation.
There were no objective findings regarding the level of her pain. There was no
medical to support the Union’s view that Ms. K could not perform sedentary work.
DECISION
[37] The parties provided approximately three hundred pages of documentation for this
Board to review including consultation notes, clinical notes, various test results,
reports regarding activities of daily living and notes to file from persons overseeing
this file for the carrier. All of those documents have been thoroughly reviewed.
[38] After much consideration, I am of the view that this appeal must be upheld.
[39] I agree with the Union that all of the diagnostic imaging revealed that Ms. K’s spine
has undergone degenerative changes as well as other factors which would
account for chronic pain.
[40] It is interesting to note that at no point in the handling of this file did Manulife’s
medical consultant agree that the claimant was totally disabled. It was various
claim managers who – after reviewing the file and interviewing Ms. K – determined
that LTIP benefits should be paid.
[41] The parties each gave significantly differing views of how the Physiatrist’s IME
should be interpreted. The Employer was of the view that it underscored that the
claimant could perform sedentary work given the restrictions and limitations set out
therein. The Union noted that at no point did the IME say that the claimant was not
totally disabled and indeed, he stated that she had a ‘limited sitting and standing
tolerance, both self-report and observed of approximately 20 minutes.” Again, I
must agree with the Union. This finding of a tolerance of approximately 20 minutes
for either sitting or standing does not translate into an ability to perform sedentary
work. In my view, that finding should have led to a multi-day functional abilities
evaluation to determine exactly the claimant’s ability beyond twenty minutes. It
may have been that during the period of the appointment with the Physiatrist, the
claimant was able to sit for twenty minutes. However, what would she have been
able to do in the hour or two after that first twenty- minute period? That information
would have been invaluable in assessing whether the claimant was no longer
totally disabled.
[42] The IME stated that the examination of the claimant took eighty minutes. The
claimant noted that she met with an assistant to review her history and was in the
presence of the Physiatrist for approximately twenty minutes. In either event, it
seems to me to be insufficient time to assess the claimant’s restrictions and
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limitations and her ability to return to work in all of these circumstances. It is also
of interest that the physical examination by the Physiatrist appears to be less
complete than that done by the orthopedic surgeon in the fall of 2011.
[43] It is worth noting that twice the claimant’s family physician urged that if a decision
was being made to have her return to work a functional abilities evaluation be
undertaken.
[44] Another factor to take into account in this matter is the fact that there is very little
difference in this case between the claimant’s own occupation and any occupation.
Any occupation frequently – and in this case did – means sedentary work. By all
accounts, when this claim was assessed throughout the period of the claimant’s
own occupation, it was on the basis that her work was sedentary in nature.
[45] As noted above the claimant did follow her prescribed medical treatment. She
undertook injections in her back, physiotherapy and pain management treatments.
While she reported relief, it frequently was of a temporary nature.
[46] The Employer suggested that fault be found because the claimant refused
rehabilitation. I understand that view but I am reluctant to do so. In those instances,
when an individual is experiencing chronic pain it is not surprising that a suggestion
of rehabilitation is not warmly received or acted upon. The refusal is in keeping
with Ms. K’s view that she was not yet ready to return to work – not ready to be
rehabilitated. My view may well have been different if she had refused rehabilitation
after a functional abilities evaluation was undertaken with findings congruent with
rehabilitation and a gradual return to work.
[47] The Employer noted that there was a lack of medical from May 14, 2014 to suggest
that there was impairment in Ms. K’s ability to return to work. I agree that it would
have been much more helpful if more medical were provided. However, given the
totality of the medical information before this Board, I am of the view that the appeal
should be upheld to the extent set out below.
[48] The Employer asked the Board to consider that in his clinical notes the claimant’s
new family physician observed that she was “ambulating freely”. However, he also
sent her for pain management. Surely if he thought that Ms. K. was overstating or
misrepresenting her symptoms such a referral to a pain clinic would not have been
given.
[49] The Employer noted that there were no objective findings regarding the level of the
claimant’s pain. As set out above, a functional abilities evaluation would have been
of assistance. Such a multi-day assessment would reveal not only the claimant’s
restrictions and limitations but would have – amongst other things - undertaken
validation testing to ascertain whether – for example - her vital signs changed with
increasing activities as the result of experiencing pain.
[50] According to the facts provided to this Board the claimant is asking for a finding
that she should have received LTIP benefits from the date of denial, June 26, 2014
to date. I am reluctant to do so.
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[51] I have no hesitation in finding that the claimant’s benefits should not have been
denied in June of 2014. Indeed, there is nothing in the IME report – which took
place in late April of 2015 - that would have me change that view. However, it is
less clear whether she remains totally disabled from performing the essential
duties of any occupation presently.
[52] I remit the matter of appropriate compensation back to the parties. If they are
unable to agree on the extent of the remedy within ninety days a conference call
should be arranged.
Dated at Toronto, Ontario this 7th day of August, 2018.
“Felicity D. Briggs”
Felicity D. Briggs, Arbitrator