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HomeMy WebLinkAbout2019-2831.Union (CRS).21-01-19 DecisionCrown 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# 2019-2831 UNION# 1350330 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 (CRS)) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Erin Thorson Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sean White Treasury Board Secretariat Legal Services Branch Counsel HEARING November 3 and December 17, 2020 - 2 - Decision [1] The Claimant, A.P., has filed an appeal regarding the denial of long-term disability benefits. A.P. received benefits for the initial period that covered disability from performing the essential duties of an employee’s own occupation. Manulife, (the Insurer), subsequently determined that A.P. was not totally disabled from performing the essential duties of any occupation and denied the claim for ongoing benefits at the change of definition date. [2] My jurisdiction to consider this matter arises under Article 22.9.2 of the collective agreement and is governed by the Terms of Reference that the parties have established for the ongoing resolution and determination of complaints involving the denial of insured benefits. In accordance with the established process, this matter has been referred to the Joint Insurance Benefits Review Committee (JIBRC). The parties were unable to resolve the matter and it has been referred to me for a final determination. Agreed Statement of Facts [3] The parties submitted an Agreed Statement of Fact (“ASF”) as follows: JIBRC CLAIMS REVIEW SUBCOMMITTEE A.P. CLAIM # 1350330 Agreed Statement of Facts 1. A.P. was born on April 30, 1972 and is currently 48 years old. 2. A.P. has been an employee of the Ontario Public Service for 15 years, hired as a Probation and Parole Officer on August 15, 2005. 3. A.P.’s last day of work was May 14, 2010 and began collecting short- term disability benefits May 15, 2010. - 3 - 4. A.P. applied for long-term disability benefits on September 10, 2010 with a diagnosis of Fibromyalgia Syndrome. The Employer’s Statement was submitted to Manulife on October 20, 2010. The two Attending Physician’s Statements were dated September 30, 2010 and October 7, 2010. 5. On December 16, 2010, A.P. was approved for long-term disability benefits for the ‘own occupation’ period, the first 30 months of total disability, commencing November 15, 2010. 6. A.P. applied for the Canada Pension Plan Disability (CPP-D) benefits on or about November 16, 2011. A.P. was denied CPP-D on February 23, 2012. 7. A.P.’s claim for long-term disability benefits was denied on November 7, 2012 for the ‘any occupation’ period. Transition benefits continued for a 3 month period, ending February 7, 2013. 8. A.P. served a Statement of Claim on the Carrier in or around October 2013, and served a notice of discontinuance wholly discontinuing the civil action against the Carrier on or about July 9, 2015. 9. An Appendix 5 dated November 20, 2012 and received on December 7, 2012 initiated the JIBRC appeal. 10. A.P. reapplied for the Canada Pension Plan Disability Benefits and was approved on August 21, 2019. 11. A.P. believes that they are entitled to benefits for the ANY OCCUPATION period from November 15, 2012 to present. Per the Terms of Reference between the Parties, the arbitrator’s remedial authority is limited to benefits for the ANY OCCUPATION period through January 24, 2020, with any further entitlement beyond that date to be determined by the Carrier. 12. A.P.’s Change of Definition date from “own occupation” to “any occupation” for long-term disability benefits was November 15, 2012. Analysis [4] A.P. has had significant and ongoing medical issues since 2010. The medical documents confirm diagnoses of Chronic Fatigue Syndrome (“CFS”) as well as a number of other health conditions. A.P. was initially diagnosed with Fibromyalgia and a variety of treatments were tried but yielded relatively little success in alleviating the primary symptoms of pain and fatigue. - 4 - [5] A.P.’s family physician, Dr. F., provided copies of clinical notes and records (CNR’s) for the period of 2010-2018. The CNR’s reflect ongoing attendance and consistent complaints of pain and fatigue in 2010 and the first half of 2011. There were no records of attendance between September 2011 and August 2012. The CNR’s after August 2012 occasionally mention ongoing complaints of chronic pain and fatigue, but largely chronicle other health issues and the emotional toll of the very difficult personal situation that A.P. faced during this period due to unrelated events. [6] The Initial Attending Physician’s Statement for Disability Benefits (IASPS) was completed on September 10, 2010 by Dr. F., A.P.’s family physician, and Dr. L., a Rheumatologist. Dr. F. recorded a diagnosis of Fibromyalgia Syndrome. Physical impairments were listed as lifting or carrying to a maximum weight of 10 pounds and sitting or standing for a maximum of fifteen minutes. Under cognitive impairment, Dr. F indicated there was moderate restriction in the area of concentration. Dr. L. also listed a diagnosis of Fibromyalgia with migraines and sleep apnea. She indicated A.P. had physical restrictions of lifting no more than ten pounds, walking less than 30 minutes at a time and with mild concentration limitations. She remarked that the result of a Mini Mental Status Exam was 30/30. [7] Reports of three Independent Medical Assessments (IME’s) were also provided. The first was performed in 2011 by a Rheumatologist, Dr. C., at the request of Manulife. The second and third were conducted at the request of the Union who sought the opinions of Dr. M.K., a Physiatrist, and Dr. P, a Psychiatrist, both of whom assessed A.P. in December 2015. - 5 - [8] Dr. C. confirmed a diagnosis of Chronic Fatigue Syndrome. He noted that A.P’s principal complaint was unusual and excessive fatigue, difficulty with concentration and memory, and discomfort with excessive exertion. In Dr. C.’s opinion, A.P. did not exhibit the symptoms of Fibromyalgia and most likely suffered from post viral chronic fatigue syndrome. He recommended a number of future investigations, including that A.P. be seen by a neurologist, undergo psychiatric or psychological evaluation and undergo a head MRI. [9] Dr. C. listed the following functional limitations and restrictions: - Limitations –primarily self-defined, largely limited by experience of pain and fatigue. - Restrictions – did not encourage A.P. to drive long distances or encourage a situation where A.P. is required to perform procedures that are time dependent. A.P. should not operate equipment that may be potentially dangerous. [10] Dr. E.K., a psychiatrist, assessed A.P. in July 2012 and found no psychiatric symptoms. He also reported that there was no indication1 during the interview of cognitive difficulties. [11] Dr. M.K., a specialist in Physical Medicine and Rehabilitation, saw A.P. in December 2015. He also reviewed a limited selection of clinical notes from 2010 through July 2012, including the report prepared by Dr. C. 1 The report stated that: “There’s no inflation during the interview cognitive difficulties”. The parties agreed that this was a typographical error and should be read as no “indication” of impairment. - 6 - [12] Dr. M.K. agreed with Dr. C’s diagnosis of post viral CFS and concluded that A.P’s presentation was not consistent with Fibromyalgia, although he notes that chronic pain is superimposed on the chronic fatigue presentation. He reports limitations with respect to activities that involve repetitive and sustained postures for the neck, upper and lower back, observing that the restrictions limit the ability to complete activities that involve lifting, bending, pushing, and pulling in addition to sustained and repetitive postures. [13] Given the current presentation, Dr. M.K. concluded that A.P. was “substantially disabled” with respect to any occupation for which A.P. is reasonably suited by education, training or experience. He subsequently concludes that since A.P. could not perform the duties of their own occupation, where the job demands were likely sedentary, it was reasonable to assume that A.P. could not return to any position for which they were reasonably suited. He therefore considered A.P. to be completely disabled. In arriving at his conclusion, Dr. M.K. observed that A.P’s disability arises from a “physical, emotional and what appears to be a cognitive perspective” but said he would defer to the appropriate colleagues with respect to the psycho emotional and cognitive issues. [14] Dr. M.K. responded to specific questions advising as follows: i. In his view, A.P.’s condition remained essentially unchanged over the years. ii. The severity of A.P’s symptoms were “quite significant”. iii. A.P’s medical condition and symptoms “significantly impact” A.P.’s ability to complete the job demands previously performed. Dr. K. - 7 - notes he was not provided with a Physical Demands Analysis but felt that A.P. did not have the necessary tolerance to complete even sedentary job demands on a regular and competitive basis due to difficulties from chronic pain and fatigue. iv. He repeats the restrictions mentioned earlier: limited ability to complete repetitive and sustained postures including lifting, bending, pushing and pulling that materially affect the ability to sit, stand or carry out daily activities. He further notes that there can be a cognitive effect related to non-restorative sleep, chronic pain and depression, but that he defers to the appropriate clinicians on this issue. v. In his opinion, A.P. is “wholly or continuously disabled since November of 2012.” He acknowledges that he did not see A.P. until December 2015, but that his clinical impression is similar to that of the opinion rendered by Dr. C. in 2011. He further observes that there does not appear to have been any material changes in A.P.’s condition since that time and that the medical issues have been longstanding and continuous since 2009. [15] Dr. P, a psychiatrist, conducted an additional IME in December 2015. He noted that A.P. had no observed difficulties in information processing, comprehension or expression. Dr. P. also reported that A.P. was driving, which is a task that requires multiple cognitive processes including concrete and executive skills such as planning, problem solving and initiation, visuospatial orientation and memory. Dr. - 8 - P. concluded that A.P. did not suffer from a diagnosed psychiatric condition and that there was therefore no treatment that he would recommend. Nor did he identify any medical limitations or restrictions. He did however recommend that a neuropsychological assessment may be worthwhile to identify the severity of any cognitive limitations. [16] Based on the medical documentation available in November 2012, Manulife concluded that A.P. did not meet the change in definition that required total disability from performing the essential duties of any occupation to which the insured was reasonably fitted by education, training or experience. In the Insurer’s view, there were no specific restrictions and limitations that prevented A.P. from returning to work to perform sedentary work, either in A.P.’s own occupation or another occupation. [17] The Union maintains that Manulife’s conclusion was inconsistent with the medical evidence and their own previous decision to award benefits to A.P. for the entire ‘own occupation’ period. While acknowledging that the issue before me is whether A.P. meets the definition of total disability from any occupation, it submitted that A.P. has met the elevated test. In the Union’s submission, A.P.’s own occupation was sedentary in nature and required medium to high cognitive demands. Since A.P. had met the test for total disability for their own occupation, it was reasonable to assume that A.P. would be similarly disabled from any occupation. [18] The parties agreed that the onus was on the Union to establish the basis for entitlement to benefits and to provide the evidence upon which that conclusion could be reached. I have carefully considered all of the documents and - 9 - submissions provided to me by the parties and find that there is insufficient evidence to establish that A.P. was totally disabled on November 15, 2012 from performing the essential duties of any occupation for which A.P. was reasonably fitted by education, training or experience. [19] A.P.’s chief complaint is that an impairment of cognitive ability due to non- restorative sleep, chronic pain and fatigue makes it impossible to return to work in any occupation. In particular, A.P. described symptoms of forgetfulness, inability to concentrate, brain fog, confusion, inability to focus and profound fatigue. While A.P. also has some physical restrictions, it was the cognitive impairment that was at the heart of the claim for total disability. [20] Unfortunately, there is very little independent medical evidence to support the existence of cognitive restrictions or limitations that are totally disabling. In 2010, Dr. F., A.P.’s family physician, noted ‘moderate’ impairment of concentration. The opinion of Dr. L., offered at the same time, however, was that there was mild impairment and that A.P. had a score of 30/30 on a Mini Mental Status Exam. Similarly, when Dr. E.K. assessed A.P. in July 2012, he reported that there was no indication of cognitive difficulties. Dr. C. included one restriction that was arguably related to cognitive function, finding that A.P. should not be required to perform duties that are time sensitive. Although Dr. C further noted that forgetfulness and concentration difficulty were commonly experienced by those suffering from CFS, he did not test for nor confirm the severity of A.P.’s symptoms in this regard. [21] Neither IME report conducted at the Union’s request confirm cognitive impairment or include any cognitive restrictions. Dr. M.K., like Dr. C, notes that there can be - 10 - cognitive impact from non-restorative sleep and chronic pain, but essentially suggests that a diagnosis in this area is beyond the scope of his practice and he defers to the appropriate clinicians. Dr. P., a psychiatrist, did not administer any specific cognitive function tests, but reported indicia, such as driving, that he believed suggested minimal cognitive impairment. Both Drs. M.K. and P. suggested that further cognitive assessments could determine the extent and severity of A.P.’s impairment, but no cognitive functional evaluations were submitted. [22] Regrettably, despite several assessments, the medical documents include only one restriction that could be conceived as relating to cognitive function. A.P. is restricted from performing time sensitive work. There are absolutely no other medical restrictions or limitations that speak to cognitive impairment, nor are there any qualified medical opinions that address such limits, despite repeated suggestion that cognitive testing might be useful. [23] I accept that the nature of these symptoms means that one must inevitably rely, to some degree, on reports of self-assessments, but there are also objective measures that can be obtained. Self-reports can be an important component of any assessment, but in this case, that is all there is. Several medical practitioners pointed out that A.P.s cognitive impairment could be tested and quantified, which would allow a qualified professional to address specific limitations and restrictions. Although the need for further assessment was identified, no further testing was undertaken or reports provided. Consequently, there is no report on the severity or extent of A.P.’s cognitive impairment. I find that the evidence of A.P. alone is insufficient to establish total disability from performing the essential duties of any - 11 - occupation, especially in light of the opinions that cognitive impairment was not apparent or mild and repeated suggestions that independent testing be conducted. [24] Nor do the very limited restrictions and limitations that are contained in the medical evidence support a finding of total disability from any occupation at the date of definition change. [25] Dr. F. said that A.P. had lifting restrictions and limitations with respect to sitting and standing. However, A.P.’s rheumatologist, Dr. L., did not support the postural limitations, finding only that A.P. was restricted from walking for more than 30 minutes. In 2011, Dr. C. stated that A.P. should not drive long distances, should not operate dangerous equipment or be required to perform time sensitive tasks. [26] I prefer the evidence of the specialists, Dr. L. and C., with respect to the postural limitations and note that there are many sedentary positions where even the more restrictive limits suggested by Dr. F. could be accommodated. While I agree with the Insurer’s initial assessment that A.P. was unable to perform the essential duties of a Parole and Probation Officer, I would note that the need to perform time sensitive tasks was specifically associated with A.P.’s own occupation. It does not necessarily follow that any sedentary position would be inconsistent with these restrictions. [27] Dr. F. also offered his opinion in 2019 that A.P. is unable to work in any gainful employment due to current symptoms of poor sleep, chronic pain, depression and anxiety. Despite the fact that this letter was written several years after the change in definition date, Dr. F.’s view is that A.P.’s symptoms of CFS had not changed based on his review of the medical records from 2013 onward. - 12 - [28] Unfortunately, I find that Dr. F.’s letter is of limited assistance in determining whether A.P. was totally disabled from any occupation in 2012. His opinion was based on A.P’s current diagnosis, which includes anxiety and depression. Those conditions were not documented in the medical evidence in 2012 and therefore undermine the conclusion that A.P. was similarly totally disabled at the relevant time. Moreover, Dr. F. offers his conclusion that A.P. cannot work, but does not set out any specific medical restrictions or limitations upon which he bases that conclusion. Given that there are contrary opinions before me, I have no way of comparing his conclusion with that of the other health practitioners. [29] Dr. M.K. provided the only independent expert opinion that A.P. was totally disabled from performing the essential duties of any occupation. He agreed with Dr. C’s diagnosis of CFS but concluded that A.P. was totally disabled from performing the essential duties of any occupation. He identified A.P.’s restrictions as significantly more limited than those set out by Dr. C. in 2011. While Dr. M.K. did not examine A.P. until 2015, he was of the view that A.P. had been totally disabled since 2012 based on the congruence of opinion between his clinical impression in 2015 and that of Dr. C. in 2011. Notably, he also found that there did not appear to be any material change in A.P.’s condition between 2011 and 2015. [30] In the Union’s submission, I should accept the opinion of Dr. M.K. that A.P. had restrictions that precluded performing the essential duties of any occupation. It was further submitted that I accept his conclusion that there were no documented changes in A.P.’s symptoms or deterioration in condition between 2011 and 2015. - 13 - Since Dr. M.K.’s opinion echoed that offered by Dr. C. in 2011, I was asked to infer that the limitations set out by Dr. M.K. in 2015 also existed in 2012. [31] In my view the Union’s submissions fail to take into account the significant difference in the details of the two opinions. It is not entirely accurate to say that Dr. M.K. and Dr. C. shared the same opinion of A.P.’s condition. They agreed on a diagnosis of CFS over Fibromyalgia, but their clinical impressions of the attendant medical limitations and restrictions were markedly different. Dr. M.K. detailed much more significant, global restrictions and limitations, whereas Dr. C. set out restrictions that were modest and targeted. [32] Nor am I convinced that the medical record supports an inference that there was no change in A.P.’s condition between 2011 and 2015. The index of medical records that Dr. M.K. reviewed when he completed his IME reveals that he did not review A.P.’s entire record. Virtually all of documents he reviewed were from 2010 and 2011, with one physician note from November of 2012, and nothing thereafter except correspondence from the Insurer and the Union. Dr. M.K. simply did not have the records needed to determine whether there was a material change in A.P.s symptoms or condition. The end result is that I am not persuaded by the opinion of Dr. M.K., rendered in 2015, that A.P. was totally disabled from performing any occupation in 2012. [33] The Union did advise that A.P. was in separate litigation between 2012-2015 and suggested that there may be additional medical documentation that was not forwarded to Manulife, Dr. M.K. or for consideration in this appeal. While I am troubled by the notion that there might be further medical evidence that I have not - 14 - been able to review, ultimately, I am restricted to considering the evidence that has been submitted. [34] The Union also suggested that the award of a disability pension by CPP in 2019 was evidence that A.P. was continuously and totally disabled prior to the change in definition date. In the Union’s submission, the 2019 decision should be interpreted as over-riding the earlier denial in February 2012. A.P. considered the 2019 decision to be issued as a result of a late application and not because of a change in circumstances. [35] I disagree. I do not think that the 2019 CPP award of disability benefits can be interpreted as a positive reflection on the degree of A.P’s disability in 2012. A.P. was denied CPP benefits in February 2012. The decision from 2012 was not appealed and the 2019 decision does not comment on the earlier denial or the extent of A.P.’s disability prior to 2017. Therefore, the decision by CPP that A.P. qualified for a disability pension in 2019 is of limited assistance in determining whether A.P. was totally disabled in 2012. [36] To the extent that it is helpful, it tends to support a conclusion of significant deterioration in A.P.’s condition after 2012. The Medical Adjudicator who concluded that A.P. did not qualify for CPP disability benefits in February 2012. found that while “you may not be able to do your usual work, you should still be able to do some type of work”. The subsequent award of a CPP pension in 2019, retroactive to 2017, strongly suggests that there was a deterioration in condition and a worsening of symptoms in the intervening period that justified the receipt of a pension in 2017 when it was not warranted in 2012. - 15 - [37] Ultimately, the Union has the onus of establishing that A.P. was totally disabled from performing the essential duties of any occupation. I am not persuaded by the evidence before me that A.P. has met that test. The restrictions that were identified were sufficient to establish an inability to perform the essential duties of A.P.’s own occupation as a Probation and Parole Officer. They are not, however, so limiting that A.P. meets the more demanding test of being unable to work at “any occupation”. [38] The appeal is dismissed. Dated at Toronto, Ontario this 19th day of January, 2021. “Reva Devins” ________________________ Reva Devins, Arbitrator