GSB#2016-1342

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (“Association”)

Association

• and –

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Christine Davies Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

October 17 and 20, 2017

Decision

1I have been appointed under article 32.2.2 as the Independent Third Party with respect to a claims review filed by a member of AMAPCEO, (hereinafter referred to as “NC”). The powers of an Independent Third Party derive from article 32.2.2.7, which provides as follows:

32.2.2.7 The independent third party shall have the powers of a Vice Chair of the Grievance Settlement Board under the Crown Employees Collective Bargaining Act. He or she shall adopt such procedures as he or she considers appropriate in the circumstances having regard to the nature of the dispute, the need for a fair process of dispute resolution, and the desirability of ensuring the resolution of the dispute in an expeditious and informal manner. This may include limiting the nature and extent of the evidence; determining the manner in which the complaint shall be resolved, with or without an oral hearing; and imposing such other conditions as he or she considers appropriate.

2In the exercise of these powers, in a decision dated September 29, 2017, I denied AMAPCEO’s request that it be allowed to lead viva voce evidence from NC. Therefore, this decision is based on all of the documentary evidence that was before the Joint Benefits Committee (“Committee”), a “Will Say” statement prepared for this proceeding by NC, and legal submissions from counsel. The employer was allowed to cross-examine NC, but counsel opted not to do so. Therefore, her evidence by way of the will say remains unchallenged.

3NC went off work on May 21, 2014 following an accident. Her claim for long term income protection (LTIP) benefits with respect to the “own occupation” period of November 22, 2014 to November 21, 2016, was denied by the insurance carrier (“Great-West”) on the grounds that she was not totally disabled during that time. NC complained to the Committee. Her complaint was not resolved by consensus of the committee and was referred to me as the independent third party.

4The definition of “Totally Disabled” in the Great-West policy is as follows:

“Totally Disabled” means, for the first 30 months of a Period of Disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which prevents him from performing the essential duties of his normal occupation.

5Great-West denied NC’s claim for LTIP. The letter of denial dated March 13, 2015, includes the following explanation for its decision:

Explanation:

We reviewed your medical information and job information with your plan’s definition of disability to consider your entitlement to payments.

At our request, you attended a Neuropsychological independent medical evaluation with Dr. Duncan on January 16 & 21, 2015. The purpose of the IME was to ascertain your level of cognitive impairment thought to be caused by the post concussive syndrome.

We reviewed Dr. Duncan’s neurological assessment and testing report in conjunction with our medical consultation board as well as all information on file. Dr. Duncan concludes that the performance validity test scores are within normal limits. In terms of your intellectual functioning scores they are within average to above average scores. While the test scores identify occasional fluctuation in level of performance it does confirm the presence of cognitive impairment but the fluctuations are likely a result of distraction, etc.

In summary, your level of cognitive impairment would not preclude you from performing the essential duties of your normal occupation. For this reason, we have not approved your claim for disability payments.

6The symptoms NC experienced during the period in question are detailed in her “will say” statement. Employer counsel agreed that her statement may be accepted as her sworn testimony, and explicitly stated that the employer was not questioning NC’s credibility. Also, none of the medical professionals who treated or reported on NC questioned the credibility of her self-reporting of symptoms and abilities/disabilities, physical and mental. Some even explicitly recorded that they found her self-reporting to be credible. In all material respects NC’s evidence by way of the Will Say Statement about her symptoms and their impact is consistent with the self-reporting she made to the various medical professionals.

7Therefore, the issue is whether in light of that unchallenged evidence and the medical record, NC meets the definition of “total disability” in the policy. In this regard, I agree with employer counsel, that the fact that NC’s credibility is not challenged does not necessarily lead to a finding of total disability. Her evidence must be considered along with the complete documentary record before me, in deciding whether the definition of total disability is met. See, Re R.G. (AMAPCEO) and the Ministry of Community and Social Services, decision dated October 27, 2010, (Briggs) at para.29.

8NC, who is 36 years old, has been employed at the Office of the Public Guardian and Trustee since August 20, 2001, and held the position of Client Representative. She describes her job in the Will Say as follows:

3 Briefly, the role of Client Representative includes acting as the financial guardian for the property and finances of a caseload of clients who are incapable of managing their own financial affairs. The clients are all low risk individuals who do not hold assets such as real estate, securities, or special trusts. Prior to my disability, my caseload was approximately 200 clients.

4 As part of my job, I assessed clients’ circumstances and needs. I did this by telephone, as well as in person in the course of client visits in the community. In addition to speaking with clients, I also communicated with their family members and care teams. I was required to research clients’ financial, business and legal affairs to protect their assets and identify liabilities. I developed budgets for clients, obtained benefits to which they were entitled, determined the sale/purchase of assets, and paid expenses on their behalf. I had to monitor clients’ finances on an ongoing basis and adjust their budgets to accommodate changes in their needs or circumstances. The majority of the job (75%) was spent using the computer, although I was also regularly required to communicate with clients and others to manage their finances appropriately.

5 The job was a busy one that required managing a lot of information and exercising good judgment about clients’ needs. The job also required good attention to detail to evaluate and oversee clients’ financial information. I was regularly required to review and analyze complex financial and legal documents. There were constant pressures to stay on top of the files and meet deadlines. I was required to make a lot of decisions on a quick basis, which had important and significant ramifications for the vulnerable clients we served. Because of the nature of the job, it was necessary to be “with it” – to have good concentration, attention, memory, and judgment, and to be able to retain information and multitask, in order to complete my tasks in a timely and appropriate manner.

9AMAPCEO counsel described NC’s position as one with high cognitive demands. She submitted that the documentary evidence, which supports NC’s description of her job establishes that clearly. Employer counsel took no issue with the assertion that the job did impose a high level of cognitive demands.

10In her “Will Say”, NC describes her accident and its impact:

8 On Saturday May 3, 2014, I struck the left side of my head on a metal car frame while bending to get into the rear seat. I was in shock and developed a severe headache. I continued to have a headache and did not feel well for the rest of the weekend. I went to work on the Monday, but felt “off”, tired and confused. I went to my car and slept during my breaks and at lunch. I had difficulty doing my work to the extent that I could not remember how to access the programs on my computer, my password, or the steps to take to send a letter.

9 My headaches and mental functioning did not significantly improve over this time. On or about May 12, 2014, I visited an urgent care centre, and was told to take several days off to rest. After resting for a few days at home, I tried again to return to work, but still was not feeling well. I found I was extremely confused and delayed in processing information and had severe head pain. It felt as though someone was consistently beating me in the head with a piece of wood. I had memory problems, was slow to process information and had trouble concentrating. I had a severe headache, which felt like pressure or sharp pain. I felt as though I had a helmet on all the time. My head pain was constant with no obvious trigger, although I found it was worse when I tried to concentrate or think. I did not have problems with headaches prior to the accident.

10 On May 21, 2014, I saw my family doctor, Dr. Laura Blew, who recommended I stop working as a result of my symptoms, and rest in order to heal my brain. She recommended limited screen time and no exercise other than walking. She diagnosed me with post-concussion syndrome and referred me to a neurologist.

11The symptoms that were preventing me from working were headache (extreme pain in head), inability to focus or concentrate, confusion, delays in processing, difficulties in forming words and an impaired ability to recall information or memories. After I stopped working, I tried to rest and lived a very secluded and sedentary lifestyle. My husband tried to help me get better by finding brain exercises online to help exercise my mental abilities, but I could not do these and they made the pain worse.

12I tried to do a bit of housework where possible, but I was not able to do much. My mother as well as my husband had to do most of this. My mother came over to help keep the house clean, and my spouse and I did laundry together every two weeks. There were days when I spent the whole day in bed, and could not do anything such as dressing, bathing, cooking, dishes or leaving the house. I was able to grocery shop on rare occasions depending on the severity of my headaches. Other times, I tried driving to the store and simply turned around, or I got to the store and could not remember what I had intended to buy. Even when I brought a list, I still made mistakes.

13In June 2014, I saw a neurologist, Dr. Rathbone. I also went to a physiotherapy assessment in late June 2014, and they showed me some muscle stretches. They told me that my neck was not causing my headaches. I did not attend for ongoing treatment.

14I was bored at home and wished I could be at work. I became very frustrated and moody after the accident because of the pain I was in, the struggle I was having with my mental functioning, and the slow pace of any recovery. I started having nightmares daily and had trouble sleeping. The nightmares sometimes related to car crashes and being suffocated or crushed. I had paralysis on waking from these nightmares and would often wake up screaming. I could only sleep at most 5-6 hours a night.

15My disability had a profound effect on my life. Prior to the accident, my husband and I went out multiple times a week. We enjoyed going to restaurants, going to the movies, and going out with friends. After the accident, because of my debilitating symptoms, I was unable to go out, and I was very isolated. I withdrew from friends and family. It was hard on me personally, and on my relationship with my spouse.

16In the months following the accident, because of my headaches, I felt unwell. I had constant head pain/pressure. In addition, superimposed on the constant head pressure, I would get sudden intense headaches, which sometimes caused nausea. I would try to read the news, but could not concentrate for longer than 10 minutes. I was easily overwhelmed. I tried to go to a peach festival in late summer 2014, but had to leave right away after only a few minutes. I tried to do a craft project with my mother, but it increased my headache and I was unable to continue. I had trouble staying focussed on a thought, thinking of ideas, or dealing with stimulation or different pieces of information. I felt I was mixing up words when talking and that my vocabulary was diminished.

17My spouse helped out with my finances and bills because I found it too difficult to focus on the information and what was required. Prior to my accident, I was on top of my finances and used a spreadsheet to track everything. After the accident, I was overwhelmed by details and information, and unable to use the spreadsheet or otherwise keep track of my finances. I missed bill payments or was late with payments after the accident. Because of the difficulty I had looking at or dealing with my own finances, I knew it would be impossible for me to perform my job, which involved handling the finances of other people.

18I also found I could not do things like crosswords or memory quizzes because this worsened my headaches. I could not concentrate for more than 5 or 10 minutes per day. When I tried reading articles, I could not remember the content.

19At the time of my accident, my husband and I were hoping to start a family. We were working with a fertility clinic because of my PCOS, which caused anovulatory cycles. Initially I was denied certain medications to help address my headaches because they were contraindicated for pregnancy due to teratogenic side effects. My family physician prescribed Naproxen, but I did not find this helped, and it hurt my stomach. I took different medications for the headaches, including Vimovo, Aspirin, and later Tylenol. I tried acupuncture, but did not find it helpful. I also underwent massage, although I did not attend any particular clinic regularly. I also did several treatments of cranialsacral therapy through an osteopath.

20Because of the problems I was having with sleep, I underwent a sleep study in December 2014. I was not able to take medication for sleeping at that time because I was still hoping to become pregnant. I recall the advice I received was to attend cognitive behavioural therapy. I sought out therapy in early 2015, but did not pursue it because it was not covered by my benefits and I did not have an income. I later attended EAP instead, as set out below.

21I went for a neuropsychology assessment with Dr. Duncan in January 2015. I tried my best to participate in the various tests, but after attending that appointment, I crashed and my symptoms were much worse for several days. I knew I could not engage in mentally demanding activities on a regular basis at that time.

22In early 2015, I was still struggling with concentration and memory, and my headaches were limiting my daily activities. There was gradual improvement of my cognitive function over time, but I was not yet to the point where I could return to my job, which involved regularly communicating with people by phone and in person, managing a busy caseload, and dealing with detailed financial information/documents. Rather, on a typical day, I would get up in the morning and work on the goal of bathing and eating a meal, and try to determine whether I was able to do anything more that day. On a typical day, I might tackle a chore such as unloading and loading the dishwasher, but this would take me all day due to pacing and breaks. I could not sustain any activity all day long. I also felt like I was less interested in things and my energy was low. I was restless and frustrated and extremely fatigued. On a good day I could do something like make dinner, but still required assistance to do so.

23I still felt unwell and had trouble dealing with lots of stimulation, for instance when in crowds of people. I had trouble focussing on information, and had to read things 3-4 times to grasp the content. I still continued to struggle to remember new information. I still was not well enough to go back to my job. I tried to exercise, but was only able to do so a few times per month, and it made the intensity of my head pain worse, which in turn exasperated my cognitive problems.

24Unfortunately, as my symptoms persisted, in 2015 I eventually determined that it would be necessary to put my attempts to get pregnant on hold in order to focus on my own health. As a result, because of my injury and ongoing disability, my husband and I have had to postpone our plans to have a family. In addition, in the fall of 2015, we were required to sell our home in Hamilton and move into my in-laws’ basement apartment in Guelph because of the loss of my income and the fact that my disability benefits were not approved. In Guelph, my mother in law gave me assistance with food and meal preparation as well as housekeeping and assistance with some daily tasks. I was very limited in what I could do. I called the Guelph “Crisis Support” phone line several times because I was struggling with my situation.

25Since stopping fertility treatments in 2015, I have been able to take additional prescribed medications to help with sleep and with headaches. Unfortunately, even with these additional medications, my health did not improve to the point where I could return to work. I still could only do a small amount of reading or walking, due to my headaches. Even simple tasks around the house like preparing dinner brought headaches. I tried do to as much as possible, but I was still very limited. For example, I tried doing some pottery painting, because I wanted to do something small that did not require me to manage complex information.

26In November 2015, I began attending counselling through the Employee Assistance Program. My goals were to sleep better and accomplish more tasks. My mood and motivation were low, and I was diagnosed with depression by Dr. Blew. At that time, my head pain came and went. I had tried Cymbalta, which did help in decreasing the pain. However, I felt suicidal while on Cymbalta, so it was discontinued.

27Gradually, over time and with the benefit of rest, I experienced an improvement in my headaches and cognitive symptoms. As a result, on May 24, 2016, I went to see Dr. Blew and initiated a discussion about the possibility of returning to work in late June 2016. I proposed returning gradually over the course of six weeks. She agreed I could try to return to work gradually. The idea was that I would start with tasks that were less cognitively demanding and gradually add the more taxing tasks.

28My employer did not agree to let me return to work, however, and required that I attend an independent neuropsychological evaluation, which I completed in September 2016.

11I next turn to the medical documents. The first assessment was performed by Dr. A. Kulkani at St. Joseph’s Healthcare, Hamilton, on May 16, 2014. He recorded a diagnosis of “concussion”. Next, on May 21, 2014, NC was assessed by her family physician Dr. L. Blew. Dr. Blew’s diagnosis was “post concussive syndrome”. She ordered NC to be “off work – limited screen time, no vigorous exercise, but ok to walk”, and prescribed Tylenol Extra Strength for her headaches. Dr. Blew next saw NC on June 4, 2014. Her assessment again was “Post-concussion headache”. NC was referred to a specialist, Dr. M. Rathbone, Neurologist. The reason for referral is “on-going headache, memory loss and processing delay”.

12Following the appointment, Dr. Rathbone submitted a report dated June 16, 2014, to Dr. Blew. It included the following:

Physical examination:

Neurological examination within normal limits except for mild neurosensory hearing loss on the right side. There was no occipital neuralgia noted.

MOCA 26/30, 2 points loss for delayed recall, 1 point loss for attention, and 1 point loss for language.

Problem formulation:

NC likely sustained a mild concussion and subsequently has developed several symptoms of the post-concussion syndrome. As she is planning to get pregnant, I am not going to try her on prophylactic medications, such as amitriptyline or topiramate, for her headaches as they have teratogenic side effects. I have prescribed physiotherapy for her neck.

As Ms. NC is overweight there is the possibility of intracranial hypertension contributing to her headaches. She was advised to loose weight by a diet changing her diet to include 10 servings of vegetables each day, Omega 3 fish oil, and protein with each meal. She will be followed up in 3 months.

With respect to Ms. NC’s cognitive difficulty and psychological changes, a neuropsychological assessment will be helpful. She was suggested to find out the insurance coverage for this test, and we will proceed accordingly.

13The record indicates that the MRI result was “normal”. The next significant document is Dr. Blew’s “Initial Long-Term Disability Statement” to Great-West dated September 16, 2014. In it, the primary diagnosis is “post-concussion syndrome”. Subjective symptoms are, “headaches, difficulty with concentration”. NC’s current physical abilities are said to be “sedentary”, her earliest return to work date is marked “unknown”, and Dr. Blew wrote “no” to the possibility of returning to modified work.

14In the “Employee’s Statement” to Great-West dated September 17, 2014 NC wrote the following in response to, “Describe briefly how your injury or illness prevents you from working”: “cannot focus/concentrate; constant headache/confusion; Extreme pain in head; Delay in mental processing”.

15The record indicates that NC was seen by Dr. Blew four times over the summer 2014. At these appointments there is no material change noted in Dr. Blew’s assessments. NC had a second assessment by Dr. Rathbone on September 24, 2014. In his report, Dr. Rathbone notes, inter alia, that NC’s “severe headaches have remained about the same”. He also wrote:

The second major issue is short term memory issues. She said information thing is delayed and she has poor concertation. She becomes now frustrated easily but said that in general, she thinks her mood is a little better. She still gets nightmares. These are not as frequent. She said she sleeps about 5 to 6 hours a day only.

Dr. Rathbone states, “This is a complex case with a number of outstanding issues”, and “This lady has post-concussion syndrome and has multiple problems.” She was referred to a sleep clinic with regard to her difficulties with sleeping, and to an eye specialist about her vision issues.

16The evidence is that the Neuro Ophthalmologist testing results on her vision was “normal”. Testing at the Sleep Disorder Clinic resulted in a finding that NC did not have sleep apnea, but notes “sleep efficiency was poor in the setting with the absence of REM sleep. The report concluded that “she does have some poor sleep efficiency that was identified in the study that could benefit with sleep hypnotics and cognitive behaviour therapy”. However, sleep hypnotics was not recommended for NC because she had plans to conceive and sleep hypnotics may not be safe during pregnancy.

17On October 30, 2014, NC was interviewed by Great-West by telephone, on her symptoms, medical consultations and treatments to date. On the recommendation of its consultant, a second more detailed interview of NC was also conducted on November 12, 2014. Based on the information obtained from these interviews, Great-West’s Assistant Medical Director concluded, “I do not see sufficient information to confirm that she would be limited from her sedentary occupation”, and recommended “a neurology IME with neuropsychometric tests”.

18Following a referral by Great-West, Dr. David Duncan, a Psychologist practising clinical neuropsychology, did an assessment of NC on January 16 and 21, 2015. In his report dated February 11, 2015, Dr. Duncan wrote the following, inter alia, under “Current symptoms and concerns”:

At the beginning of the assessment, Ms. NC completed a brief informal problem checklist and she endorsed the following difficulties: stress, poor concentration, memory problems, fatigue/lack of energy, pain, difficulty sleeping and headache. She added the following problems, “mood, patience, staying focused on a thought, trying to visualize memory, trying to think of ideas, difficulty in situations with lots of stimuli, e.g., large groups, multiple conversations, lots of pieces of a puzzle, lots of traffic”.

In response to specific questions regarding areas of cognitive functioning, she explained that she was not having difficulty with auditory comprehension in the course of the interview but that in other contexts she had difficulty understanding instructions. She continues to feel that her vocabulary is diminished and she mixes up words when she is speaking. This is particularly difficult when she is in a large gathering of people. Her spelling has deteriorated and she feels “blocked” when she tries to spell words. When she is feeling overstimulated, her sense of direction is poorer. Her ability to perform calculations is affected by difficulty visualizing the numbers. Regarding concentration, if she has an idea, she has to express it before she loses it. She can focus on one-to-one conversation and can concentrate on simple TV shows. She used to rely on visual imagery to help her remember things and initially after her injury she was unable to see visual images but this is improving. She does not have any difficulty coping with distractions in the home environment, but she added that distractions there are infrequent. She continues to experience memory problems when she goes grocery shopping. She can’t recall five items, so she makes list, but still forgets things she intended to buy. She explained that she is usually very tired by the time she gets to the grocery store and sometimes will decide that she is feeling too frazzled and exhausted to shop. Regarding her ability to plan and organize activities, she described herself as being easily overwhelmed.

She has noticed improvement in her cognitive functioning over time but this has been slow. She has been advised that if she continues resting, this improvement will continue.

19Dr. Duncan also wrote:

When we spoke on January 21, I asked her how the assessment on January 16 had affected her symptoms,. She responded that she had “crashed” and that the day following the exam her head was very heavy. Increased head pain had persisted until January 21. She described this as a “sharp crazy pain” and a full feeling, like she had lead in her head. She has been spending most of her time since the assessment, lying down and resting and taking analgesic medication. Other than lying in bed and going to the bathroom, there was little else she could do.

Dr. Duncan reviewed the test results under various headings, and at p. 15 concluded as follows:

In conclusion, the neuropsychological assessment findings reveal occasional lapses in performance and this would more accurately be characterized as diminished cognitive efficiency than cognitive impairment. There is no indication that she is experiencing a degree of anxiety or mood disturbance that would cause direct interference in her cognitive functioning. Instead, it is more likely that other psychological factors, such as distractibility associated with her head pain, diminished confidence and negative expectations regarding her cognitive abilities are having an effect on her test performances leading to occasional lapses.

20Dr. Duncan was presented with a number of referral questions. Question 9 was: “Is there evidence of cognitive impairment that is severe enough level to interfere with the claimant returning to work?” Dr. Duncan responded:

NC’s position at the Office of the Public Guardian and Trustee presents her with significant cognitive demands. The diminished cognitive efficiency revealed by the neuropsychological measures would interfere with efficient and accurate performance of her usual job duties.

The final referral question was, “Were there any issues or test results that raise questions about the claimant’s credibility or reliability as a historian?” Dr. Duncan’s answer was “No”.

21On March 5, 2015 Dr. Duncan’s report was reviewed by Dr. Eric Rumack, Great-West’s medical consultant. In his file review Dr. Rumack wrote:

Neuropsychological IME by Dr. David Duncan dated February 11, 2015 noted that “although she sustained an injury to her head, it is unlikely that she sustained a traumatic brain injury … it is very unlikely that it would have produced severe persistent cognitive impairment … the neuropsychological assessment findings reveal fluctuations in level of performance rather than consistent evidence of cognitive impairment” – Dr. Duncan concluded that there was no objective evidence of cognitive impairment that would meet the criteria for a diagnosis of Mild neurocognitive Disorder.

In response to questions from Great-West, Dr. Rumack wrote that, “There is no evidence of cognitive impairment attributable to cerebral dysfunction”, and “symptom severity is by employee self-report”.

22Based on the foregoing, on March 11, 2015 Great-West Team Manager, Ms. Mary Zomparelli, directed that NC’s claim be denied. She noted that “While the test scores identify occasional fluctuation in level of performance it does confirm the presence of cognitive impairment, but the fluctuations are likely a result of distraction etc. In summary, the level of cognitive (sic) would not preclude employee from performing her occupation”. This direction was followed by the letter of denial dated March 13, 2015, referred to at para. 5, supra.

23Dr. Rumack did a second file review report on June 25, 2015. In that he notes that there were “no significant findings” in the neuropathologist report or the sleep disorder clinic report, and that these reports do not “change the conclusion of the neuropsychological IME by Dr. David Duncan dated February 11, 2015”. He concluded that “There are no medical contradictions evident that would have precluded the employee from performing the duties of her own occupation from May 22, 2014 to present”. On July 3, 2015, Great-West Team Manager, Ms. Zomparelli reviewed Dr. Rumack’s report and concluded, “Overall, no medical contraindications to working. Maintain declination”.

24On May 27, 2016 AMAPCEO requested from Dr. Blew, NC’s family physician, information relating to a number of specific areas. Dr. Blew’s detailed letter dated June 1, 2016, is as follows:

Thank you for your May 27, 2016 letter, requesting NC’s relevant medical information from September 2014 onward. I will answer your questions in the order you listed.

I have practiced Family Medicine in family practice since 1992 and am certified by the College of Family Physicians of Canada with a specialist designation.

I have been NC’s family physician since December 1993. I began treating her for the present condition on May 21, 2104 when she reported that on May 3, 2014 she struck the left side of her head on a metal car frame with momentum as she entered the vehicle. She had immediate head pain and a period being unusually quiet and then developed ongoing headache, fatigue, irritability, and difficulty with memory and word finding. She had been seen at the emergency room where a diagnosis of concussion without brain imaging. I saw her approximately monthly from May to October 2014 then again approximately monthly March 2015 to the present. During the October to March period she was assessed by and received care from specialist physicians and a psychologist. She regularly attended all appointments.

NC’s subjective symptoms include those listed above, headache, fatigue, irritability, and difficult with memory and word finding. Over the months she also developed a low mood with loss of enjoyment of activities, concentration and sleep difficulties. These symptoms have affected her ability perform activities of daily living such as preparing meals and shopping as well as the daily administrative details of life such as reading emails, paying bills etc.

NC’s objective symptoms include those outlined below from Dr. Duncan’s report. I further witnessed at office visits her change in mood and energy level, tearfulness, slowing of speech and motions such as walking pace. These symptoms have affected her concentration and tasks completion as well as her ability to cope her chronic head pain and financial pressures and also likely impacted the severity of chronic pain experienced.

Never did I have concerns about NC’s credibility or reliability as a historian, although given the nature of her injury included memory impairment it is possible she may have forgotten details of her medical history.

NC’s primary diagnosis is Traumatic Brain Injury (TBI) complicated by Persistent Postconclussive Syndrome (PPCS).

Although no universally accepted definition of PPCS exists, most of the literature defines the syndrome as the development of at least 3 of the following symptoms: headache, dizziness, fatigue, irritability, impaired memory and concentration, insomnia, and lowered tolerance for noise and light, lasting longer than 3 to 6 months’ duration.

The ICD-10 diagnostic criteria for PPCS include a history of traumatic brain injury (TBI) and the presence of 3 or more of the following 8 symptoms: (1) headache, (2) dizziness, (3) fatigue, (4) irritability (5) insomnia, (6) concentration or (7) memory difficulty , and (8) intolerance of stress, emotion, or alcohol.

The former DSM-4 criteria are (A) history of TBI causing “significant cerebral concussion;” (B) cognitive deficit in attention and/or memory; (C) presence of at least 3 to 8 symptoms (eg. Fatigue, sleep disturbance, headache, dizziness, irritability, affective disturbance, personality change, apathy) that appear after injury and persist for 3 months; (D) symptoms that begin or worsen after injury, € interference with social role functioning; and (F) exclusion of dementia due to head trauma and other disorders that better account for the symptoms. Criteria C and D require symptom onset or worsening to be contiguous to the head injury, distinguishable from pre-existing symptoms, and have a minimum duration of 3 months. The DSM 5 published in 2013 removed this diagnosis but it is still widely used by the experts in the TBI field.

NC meets diagnostic criteria for TBI with PPCS by various criteria.

NC also has a relevant secondary diagnosis of Reactive Major Depressive Disorder (MDD) that developed in response to her injury-related pain and losses. Her Depression ranged in severity from moderate in January 2015, to severe in February 2016, to being in remission in May 2016.

NC’s treatment to date has been appropriate and adequate. PPCS is largely addressed with brain rest including time, sleep, substance avoidance and limited reading and writing including “screen time”. NC was compliant with the advised treatment which required she cease work, whereas per her job description, 75% of her time involved computer use and 40% of her time was spent writing.

In response to Dr. Duncan’s psychological report NC’s treatment regimen was expanded to include referral to David Smith, MSW for psychological counselling in March 2015, however she reported in October 2015 that this was not funded so she instead was attending EAP funded counselling. Unfortunately EAP funding is often limited to a small number of infrequent attended 5 counselling sessions. Treatment recommendations were generally followed as funding barriers and patient comfort with prescription medication use allowed. As NC and her partner were trying to conceive early in time following her accident she declined medication if suggested. Her neurologist, Dr. Rathbone and I were aware of and supported this decision. When she decided her deteriorating health necessitated deferring trying to conceive she willingly accepted hypnotic medication for sleep and a trial of antidepressant medication for both chronic pain and mood. As of May 2016 she continues to use a sleep aid. She discontinued the antidepressant after a therapeutic trial of adequate length because of side effects with no impact on mood or pain and as an alternative on her own initiative developed and has embraced a regular exercise program to address her mood. This has been effective and her depression has entered remission.

NC has been and remains motivated to follow the treatment regimen, with a healthy reluctance to rely on medication if not entirely necessary and other non-pharmaceutical treatments are available. She would like nothing more than for her condition to improve and be able to return to her previous activities including work. She has now initiated a plan to be able to attempt returning to work this month.

NC’s progress has been that expected with PPCS, of gradual slow improvement of many PPCS symptoms. She has had resolution of MDD with time, cognitive behavioural therapy and exercise which was also is typical.

No future plans for new treatment are in place. She is advised to continue graduated exercise and to prioritize her sleep. Her mental activities will also be graduated as her pain allows her to tolerate.

Dr. Duncan is a psychologist who assessed NC for her insurer in January 2015. In his February 2015 report he concluded she most likely did not suffer a TBI or if she did it was mild. Dr. Rathbone specifically refutes Dr. Duncan’s opinion that she did not have a TBI in his April 2015 consult letter and I defer to his expertise and support this diagnosis as I feel she meets the criteria. The differing opinions seem to rest on the presence of absence of the single criteria of brief disorientation after her injury. All other criteria are indisputably present. All professionals including Dr. Duncan agree that her recall is impaired, so we may never know this answer to this subjective question. All other symptoms and the fact that she has remained symptomatic for such a long period support the diagnosis of TBI and PPCS.

Dr. Duncan reports NC made a genuine good effort on testing but had fluctuating performance with some lapses in attention and working memory, specifically recall. His assessment of mood by use of the Beck Depression Inventory indicated a moderate mood disturbance but he concluded she did not have a mood disturbance because another test, the MMPI did not demonstrate significant emotional distress. In retrospect the variation in results may have reflected a not yet clear but emerging depression as she unfortunately went on to develop classic symptoms of more severe depression over the next year.

Dr. Duncan’s report concluded NC had diminished cognitive efficiency but not cognitive dysfunction. Most importantly, Dr. Duncan acknowledged that this objective impairment would interfere with efficient and accurate performance of her usual duties in her work and suggests she needed to pursue psychological treatment to attempt to address this impairment. Dr. Rathbone supported this treatment approach in his April 2015 letter as did I. The differing semantics used to describe her cognitive impairment may well be of little practical relevance as all professionals involved agree NC was unable to perform the essential duties of her work due to illness, be it mental disorder or accidental injury or both, meeting the GWL criteria for long term disability benefits.

NC’s level of impairment due to PPCS and MDD was significant, and in addition to her own occupation she has been unable to do other work to date. A proposal for a slowly graduated modified role at work to begin June 20, 2016 was made in May 2016. The patient was proactive in suggesting beginning with tasks required in her regular role to that are less taxing to her areas on challenge, including memory, concentration and attention. The proposal reflects the suggestion that tasks requiring these cognitive functions will be gradually increased as tolerated within specific goal timelines. Graduated hours are meant to accommodate for increased fatigue and headache as the day progresses. Hours also will be gradually increased as tolerated within specific goal timelines.

NC’s prognosis is cautiously optimistic given her medical improvement and strong motivation, and will become clearer as her tolerance for modified work is established.

AMAPCEO SUBMISSIONS

25Counsel for AMAPCEO reviewed the medical records, and submitted that while the doctors disagreed on the “label” to be attached to the diagnosis, they agreed that NC required psychotherapy. Dr. Blew, NC’s long-time family physician, had the job description for NC’s position and concluded that she was not capable of performing those duties and ordered her to stop working. She notes that NC was motivated to return to her job even with modifications, as well as to the daily activities she was used to, but her symptoms prevented her from doing so.

26Counsel submitted that Dr. Rumack, who had never seen NC, focussed only on the lack of a specific diagnosis, and the absence of objective evidence. He ignored the information in the record that despite the inability for the doctors to agree on a definite diagnosis, they all agreed that NC suffered from symptoms which prevented her from performing in her own occupation. While those symptoms were based on self-reporting, none of the doctors had questioned the credibility of NC’s self-reporting.

27Counsel referred to a second neuropsychological IME performed on September 19 and 20, 2016 by Dr. M. Celinsky, at the employer’s request, in an attempt to return NC to work. She pointed out that this assessment done almost at the end of the own occupation period was about NC’s ability to do her Client Representative duties going forward. She noted that Dr. Celinsky does not suggest that NC could have returned to her job earlier. To the contrary, he recommends that even going forward, she would have to be accommodated, starting with very limited hours doing less complex tasks, and gradually increasing hours and tasks. Counsel also noted Dr. Celinsky’s repeated observations that he found NC’s self-reporting to be entirely credible, and that she did not attempt to exaggerate her disability during testing. Counsel noted that Dr. Celinsky had not been provided the assessment reports previously done by Dr. Blew, Dr. Rathbone and Dr. Duncan. Therefore, his assessment was performed uninfluenced by those. He concluded that even as of September 2016, NC was not able to function in her position effectively. Attention was drawn to the following questions posed by the employer, and Dr. Celinsky’s responses.

3. We request that NC’s functional abilities, restrictions and limitations be compared to the Job Specification document for Client Representative that we have provided to the Assessor (Attachment #1). In conjunction with this document, we highlight the following:

. The home position requires strict attention to detail, judgment, the ability to multi-task in a fast paced environment and a high level of executive functioning.

. If errors are made in the position, there is significant impact not only to the operation but to the vulnerable clients. Errors or omissions can be life-changing and detrimental to those least equipped to deal with such events.

. The environment involves exposure to unpleasant situations as noted in On Job-Specification document.

Can you please comment on the suitability of the position as outlined in accordance with NC’s current functional abilities?

As noted above, it is our opinion that with time and appropriate accommodation, in the form of a gradual return to work and a measured pace, she will be able to apply herself in an efficient manner. In other words, NC should be allowed a gradual return to work such that she initially works half days and once she is back to her prior pace, return to full time work. The limited time at work will allow her to complete the tasks outlined in her job description with the required care and not become overwhelmed with fatigue. This program of gradual return to work should be further facilitated by psychological therapy and treatment of her headaches.

It is our opinion, that a return to work for 3 hours day is appropriate for the next two weeks where she is in an environment where she is not required to multi-task until she has familiarized herself with the routine and then increase to half days for the following month. Once she is able to complete half days she should be reintegrated a full time schedule.

4. What is the likelihood of NC being able to fulfill the essential duties of her position in the foreseeable future?

NC has been diagnosed with Mild Neurocognitive Disorder without Behavioral Disturbance due to Multiple Etiologist; her difficulties are particular noted in the area of, delayed visual and verbal recall, and executive functions. No other psychological conditions were identified. Her headaches need to be diagnosed and treated by physical therapy (such as medical and physiotherapy) but this is left to the discretion of her family physician.

28Counsel submitted that in denying NC’s claim for LTIP, Great-West focussed almost exclusively on the absence of objective evidence to confirm her self-reported symptoms. In doing so, Great-West not only failed to appreciate that a condition with subjective symptoms such as headaches and depression can be totally disabling, and further that all medical professionals had found NC’s self-reporting to be entirely credible. Dr. Rumack did not pay any attention to Dr. Duncan’s findings following a battery of tests. In response to a direct question about NC’s ability to return to her job, Dr. Duncan noted that NC’s job presented her with significant cognitive demands, and concluded, “The diminished cognitive efficiency revealed by the neuropsychological measures would interfere with the efficient and accurate performance of her usual job duties”. Counsel submitted that NC’s job required her to manage the finances of members of the public who were unable to manage their own finances. This is a job that must be done efficiently and accurately Dr. Rumack. Who had never seen NC, and Great-West, completely ignored this finding with no explanation.

29Counsel urged that I make a finding that the illnesses that NC suffered from as set out in the record prevented her from working in her own occupation as Client Representative during the 2 year period in question, and therefore was totally disabled.

EMPLOYER SUBMISSIONS

30Reviewing documents, employer counsel pointed out that there were many medical recommendations made by medical professionals, which NC either did not follow, or the record does not indicate whether she did. She did some psychological therapy and physiotherapy, but not as much as recommended. Thoracic Surgery was suggested, but the record does not indicate it was done. She was advised to lose weight. She lost some weight, but regained it shortly after. She was advised to take certain medications, but declined because she was receiving fertility treatment in order to conceive. The record does not show that she received any medication for her depression until almost the end of the two year own occupation period, or that she had an on-going psychological treatment or therapy. Based on the foregoing, counsel submitted that the record paints a picture of someone not complying with all treatments recommended.

31Counsel submitted that the record suggests that NC was not confined to a sedentary and isolated lifestyle as she states in her “Will say”. There is no indication that any doctor reported to the Ministry of Transportation that her driver’s licence should be suspended because of her disability. The inference is that none of them considered her to be at risk by driving, and that she was able to and continued to drive. The record further indicates that NC got married in the spring of 2015, and that on some unknown date travelled to Florida. She had asserted that she lived a very sedentary life following the injury. In November 2014 Great-West interviewed NC by telephone. There is no indication in the record of that interview that NC informed that she got married or travelled to Florida. Counsel reiterated that the employer was not questioning NC’s credibility or asserting that she was malingering. It was simply stating what the record shows.

32Employer counsel conceded that NC may have had good reasons for not following some of the doctors’ recommendations. For example, she and her partner wanted to start a family and had been on a fertility treatment program. She had a choice to terminate that program, and take the medications recommended for her disabilities. She chose not to do that, and that was her absolute right. However, her choice has the consequence that her health would not improve to enable her to return to work. The employer and Great-West should not be responsible to pay for the consequences of her choice.

33Counsel stated that the employer was not disputing the findings made by the doctors. However, it was the employer’s position that those findings are not sufficient to meet the definition of “total disability” in the policy, which requires that a claimant must be “wholly and continuously disabled … which prevents him from performing the essential duties of his normal occupation” during the two year occupation period. Dr. Duncan’s finding was that “the diminished cognitive efficiency … would interfere with the efficient and accurate performance of her usual job duties”. While NC’s constant headaches and other symptoms may have interfered with her ability to attend work regularly and may have also interfered with her ability to perform her job duties as efficiently and accurately as before, that falls short of meeting the test. While NC may have been having difficulty coping with her headaches and other symptoms, and struggling with her ability to concentrate, that does not mean she was totally disabled for purposes of entitlement for LTIP benefits.

AMAPCEO REPLY

34Counsel submitted that the reasons put forward by employer counsel in arguing that NC’s claim should fail, are largely ones not relied on by Great-West in its letter of denial. The employer suggested that had NC complied with all medications and treatments recommended, she would have improved and returned to work earlier. However no doctor has ever stated that. To the contrary, the medical file indicates that medication or medical procedures were not the primary treatment recommended for NC. Counsel referred to Dr. Blew’s report dated June 1, 2016, to AMAPCEO, where she wrote that “NC’s primary diagnosis is Traumatic Brain Injury (TBI) complicated by Persistent Postconcussive Syndrome (PPCS)”, and that NC meets diagnostic criteria for TBI with PPCS by various criteria”. She then states that the primary treatment for PPCS is rest. She wrote:

NC’s treatment to date has been appropriate and adequate. PPCS is largely addressed with brain rest including time, sleep, substance avoidance and limited reading and writing including “screen time”. NC was compliant with the advised treatment which required she cease work, whereas per her job description, 75% of her time involved computer use and 40% of her time was spent writing.

Counsel submitted that the record shows that NC made gradual recovery only by complying with doctor’s orders to rest which included orders to be off work.

35Counsel pointed out that the employer had argued that there was nothing in the medical record, whether or not NC complied with some of the doctors’ recommendation, and if she did not, why. Counsel submitted that the employer has explicitly stated that it is not taking the position that NC was malingering. All of the doctors have stated that she was very motivated to get better and was compliant with recommendations. The employer declined the option to cross-examine NC. Having made that choice, it was not open for it to argue that there is no explanation for why certain recommendations may not have been followed, and to conclude by inference that NC was someone who had a pattern of not following recommended treatment.

36AMAPCEO counsel agreed that to be eligible for LTIP, NC must meet the test for total disability as defined in the Policy. She submitted that the evidence in the medical record, and NC’s Will Say statement are consistent with each other, and clearly meets the test. Dr. Duncan’s finding that NC’s health issues “would interfere with the efficient and accurate performance of her usual job duties,” is no lesser than what is contemplated by the definition in the policy, particularly considering that NC’s job required her to manage the finances of others who were themselves unable to do so. If NC could not manage those finances efficiently and accurately, she could not do her job.

DECISION

37The central question in this claims review is, was NC wholly and continuously disabled by illness or accidental bodily injury, which prevented her from performing the essential duties of her position of Client Representative from November 22, 2014 to November 21, 2016.

38I have reviewed the evidence that clearly establishes that as a Client Representative in the Office of the Public Guardian and Trustee, one of the primary responsibilities NC had was to manage the finances of members of the public, who due to illness or old age, could not manage their own finances. The employer did not take issue with AMPACEO’s assertion that when managing other people’s finances, it was extremely important to do so efficiently and accurately. To the contrary, in its referral to Dr. Celinsky, the employer describes NC’s position as follows:

. The home position requires strict attention to detail, judgment, the ability to multi-task in a fast paced environment and a high level of executive functioning.

. If errors are made in the position, there is significant impact not only to the operation but to the vulnerable clients. Errors or omissions can be life-changing and detrimental to those least equipped to deal with such events.

The evidence is that in ordering NC to remain off work, her family physician took into account NC’s inability to cope with such responsibility. Even Dr. Duncan, an independent medical examiner, in concluding that NC’s diminished cognitive efficiency “would interfere with the efficient and accurate performance of her usual job duties”, prefaced it with the observation that NC’s job “presents her with significant cognitive demands”.

39Great-West’s explanation for denying NC’s claim is set out at para. 5 (supra). It recognizes that based on Dr. Duncan’s assessment and testing confirms the presence of cognitive impairment. However, it goes on to state that the fluctuations in NC’s cognitive abilities is “likely a result of distraction, etc.”. From there, Great-West conclude proceeds to that “Your level of cognitive impairment would not preclude you from performing the essential duties of your normal occupation”.

40Dr. Duncan did state (para. 19 supra) that NC’s condition “would more accurately be characterized as diminished cognitive efficiency than cognitive impairment”, and “… it is more likely that other psychological factors, such as distractibility associated with her head pain, diminished confidence and negative expectations regarding her cognitive abilities”. It may well be the case that NC’s cognitive deficiency did not result from her head injury itself. The head injury led to headaches, which led to loss of confidence, which in turn led to negative expectations regarding her cognitive abilities. Dr. Blew in her letter dated June 1, 2016 wrote that NC developed a secondary diagnosis of Reactive Major Depressive Disorder “in response to the injury related pain and losses”. There can be no doubt, therefore, that but for the head injury, NC would not have experienced the symptoms such as distractions, confusion, lack of concentration etc. The fact, in any event, is that Dr. Duncan concluded that NC’s diminished cognitive efficiency “would interfere with the efficient and accurate performance of her usual job duties”. For purposes of this claims review the important question is whether NC was wholly and continuously disabled” by illness or injury, and not whether the disability can be attributed to a particular diagnosis.

41I have reviewed in some detail the reports by Great-West’s consultant Dr. Rumack. In concluding that NC was not totally disabled in the relevant period, Dr. Rumack relies on the scores from Dr. Duncan’s testing, the absence of objective evidence of cognitive impairment and the fact that NC’s claim is based on self-reporting. This, however, is a case where the claimant suffered from deficiency in her cognitive and mental abilities following a physical injury. Such functional limitations, unlike physical limitations like standing, sitting or lifting are not measurable by objective testing. The medical experts are best positioned to use their experience in giving their opinion on total disability, taking into account all of the factors, including test results, the claimant’s self-reporting, observed symptoms as well as the credibility.

42Employer counsel submitted that while he took no issue with Dr. Duncan’s finding that NC suffered from diminished cognitive efficiency and that it would “interfere with the efficient and accurate performance of her usual job duties”, that falls short of the “wholly and continuously disabled” test in the policy. Counsel however, did not elaborate on what duties of her position NC would have been able to perform given Dr. Duncan’s finding, and despite Dr. Blew’s clear instruction that NC should not be working. In Paul Revere Life Insurance Company and Sucharov 1983 CanLII 168 (SCC), [1983] 2 R.C.S. 541, (S.C.C.), the definition of “total disability” in the policy required that the insured “is completely unable to engage in his regular occupation”. The insured in his claim had stated, “that he is able to perform individually most of the duties” of his position. Yet the majority of the Court upheld the claim. The court wrote at p. 546:

The insurer contended that the proper test was whether the insured was unable to perform the material duties of his occupation. It would segment the duties and put particular assessments upon them. This, however, ignores the medical evidence, which is not disputed, and which clearly shows that his attempts to carry on as owner-manager have brought on attacks of stress and nervousness bordering on hysteria (to use the words of Hall J.A.).

To put the matter another way, an owner-manager is totally disabled from performing his work as such when he is unable to perform substantially all of the duties of that position.

In Couch on Insurance (1983), 2d (Rev. ed.) 53:118 there is the following relevant paragraph:

The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.

43In a claim for compensation for mental injury caused by negligence, the Supreme Court of Canada in Saadati v. Moorehead [2017] S.C.C. 28 made the following observations at para.31:

Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effect (Mulheron, at p. 88)

In other words, the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them.

In my view, the reasoning of the court in relation to entitlement to damages for mental injury caused by negligence equally applies in claims for LTIP benefits.

44In the instant case there is no evidence that NC was capable of performing any productive work in her position, which the employer agrees is one with significant cognitive demands. If she is unable to function efficiently and accurately due to cognitive deficiency, she cannot do her job as Client Representative, even if she would have been able to physically be at her work station. Moreover, Dr. Blew ordered NC to cease work and rest. Dr. Blew was of the opinion that NC’s condition was primarily addressed by resting her brain. The test in Couch on Insurance cited with approval by the Supreme Court of Canada (supra), is met in these circumstances.

45The reliance by Great-West on the cause of NC’s cognitive deficiency is misplaced. In D.E. v Unum Life Insurance Co of America, (1999), 1999 BCCA 507, 177 D.L.R. (4th) 738 (B.C.C.A.), the claimant’s health issues had been variously described as chronic fatigue or Fibromyalgia. In upholding the claim, the majority held that while the claimant was required to prove that she was unable to work due to illness, her inability to establish the precise cause of her disability or even to attach a specific label to her condition was no obstacle to her claim. At para. 56 the Court wrote:

It was suggested by counsel for the insurer during the course of submissions that, unless Ms. D.E. was able to establish the precise “cause” of her disability, she could not recover under the terms of the policy. In my view, this argument is misconceived. The policy is a disability policy. It provides that if someone is disabled by sickness, then benefits will become payable… [T]he critical questions under the policy are whether the claimant is suffering from a sickness, and, if so, is she thereby disabled from working…

46The significance of the lack of objective evidence, relied upon by Dr. Rumack, and in turn by Great-West, has also been judicially addressed. In D.E. v, Unum Life Insurance Co. of America (supra) at para. 46, the B.C. Court of Appeal wrote:

Thus, while the medical evidence called on behalf of Ms. D.E. in support of her claim that she was disabled from working was largely dependent on her subjective description of her symptoms and their effect upon her, there was evidence from others verifying the apparent effect of her condition on her day-to-day living and her ability work. The credibility of these witnesses was not challenged. Nor was it suggested to Ms. D.E. that she was “faking” or “malingering” in order to obtain disability benefits, or for any other reason.

47In Re Joseph Brant Memorial Hospital, 2014 CanLii 77191 (ONLA) (Bendel), the arbitrator, in determining a grievance challenging the denial of long-term disability benefits, declared that “In the first place, fibromyalgia and other conditions for which there exists no objective medical test are not, ipso facto, ineligible for compensation” (P. 75). He quoted the following from the judgement of the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at 514:

There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time or the underlying injury is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real…Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.

48As noted above, the credibility of NC’s self-reporting is not questioned by anyone. The employer explicitly stated so, and the medical professionals who personally met with NC have recorded favourable comments about her credibility. Great-West has not questioned NC’s credibility in its letters of denial. Therefore, the absence of objective evidence, or the fact that NC’s claim of disability was largely based on her self-reporting is not a valid reason for denial of her claim.

49Employer counsel listed a number of treatments/medications the doctors had recommended, which were either not followed by NC, or there is no information in the record whether she complied, and if not, why she did not comply. It is very striking that Great-West has not even mentioned “failure to follow recommended treatment” as forming any part of its decision to deny NC’s claim. Quite apart from that, the record does not paint the picture of a patient who has a pattern of failing to follow recommended treatment, as employer counsel suggests. To the contrary, the treating medical professionals without exception, comment that NC was very motivated to get better and return to work. Indeed, there is evidence in the record that indicates that NC’s frustration about not being able to attend work, and the sense of being a young woman sitting at home, unproductive and useless, contributed to her developing mood and depression issues. This is further supported by the evidence that it was NC who initiated a request that she be allowed to return to work, even on a graduated hours basis.

50Moreover, there is no evidence to support employer counsel’s assertion that NC’s noncompliance with recommended treatments prevented her recovery and return to work. No medical professional has suggested that. Counsel was relying on observations by doctors that a certain procedure or medication “could” help. Dr. Blew wrote that, “NC has been and remains motivated to follow the treatment regimen with a healthy reluctance to rely on medication if not entirely necessary…” and “she would like nothing more than for her condition to improve and be able to return to her previous activities including work”. With regard to her declining medications which would have required her to cease her fertility treatment plan, Dr. Blew has explicitly recorded that she and Dr. Rathborne supported NC’s decision in that regard.

51Employer counsel relied on the evidence in the record that NC had got married, and had also travelled to Florida during the period in question, to argue that she could not have been so depressed, and could not have been living a sedentary and isolated life style as she reported to the doctors, and claims in her Will Say. He also argued that NC had not been forthcoming with Great-West because during the telephone interview there is no record that she mentioned her marriage or the trip to Florida. I find no merit in either position. In the first place, NC has clearly described the detrimental impact of her condition on her life style. That description is consistent with her self-reports to medical professionals. No medical professional had expressed any concern about the credibility of NC’s self-reporting about her symptoms or their impact. More importantly, the employer explicitly stated that it was not claiming that NC was malingering or that she was not credible. Having done so, it is not open for counsel at the same time to argue that her description of the impact of her symptoms on life style is not believable. To justify such argument, the employer should have at least cross-examined NC about the asserted inconsistency between her claims, and the facts he relies on. Counsel had the opportunity to do so, but opted not to. Therefore there is no information whatsoever, as to why and how NC travelled to Florida, what activity related to her marriage may or may not had been inconsistent with her clamed disability. In the circumstances it would be extremely unreasonable to infer that NC’ life style was not impacted as much as she claims. As AMAPCEO counsel pointed out, NC could not have reported her marriage or the Florida trip at the interview with Great-West, because those events took place after the interview.

52I understand, and agree with, employer counsel’s submission that the test is not whether NC can perform her job as well as she did prior to her injury. The test is whether she was totally and continually disabled from performing the essential duties as Client Representative. Although differing on diagnosis and testing scores, Doctors Blew, Rathbone and Duncan in the end agree that NC was unable to perform the essential duties of her position. Neither Dr. Rathbone nor Dr. Duncan suggested that NC could and should return to her job. They did not contradict Dr. Blew’s decision to keep NC off work. Given the undisputed evidence before me to the effect that those essential duties placed significant cognitive demand on her, I am persuaded that NC met the test in the policy. I hereby conclude that she was wholly and continuously disabled by illness which prevented her from performing the essential duties of her normal occupation as client Representative from November 21, 2014 to November 22, 2016.

53I remit the matter to the parties to resolve any issues that may arise in view of that conclusion. I remain seized to deal with any disagreement they may encounter in that regard.