GSB#2018-1681

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 (KAT)

Association

• and –

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Bram Herlich

Arbitrator

FOR THE ASSOCIATION

Kelly Doctor and Sarah Rostom Goldblatt Partners LLP Co-Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 24 and 25, May 10 and July 19, 2019

Decision

Background

1The complainant in this case (who will be referred to as such or as “KAT”) was denied ongoing entitlement to long term disability (“LTIP”) benefits. The insurer (also referred to as “GWL”) was not persuaded that she was totally disabled within the meaning of the policy which governs entitlement. The complainant and the union have disputed the propriety of that denial. The instant decision is the culmination of the dispute resolution process the parties, in their collective agreement, have agreed to for the final resolution of such matters. I am to determine, in respect of the period(s) it was in dispute, whether KAT was “totally disabled”. As will be seen shortly, my determination relates to the period of time commonly referred to as “any occupation” (or “any occ”).

2When the hearing commenced, counsel had placed three stacks of documents before me, each one approximately one to one and a half feet in height. These were the contents of the insurer’s file in the matter. Fortunately, counsel were also able to review these and select the 177 or so documents to which they wished to call my attention. A few additional documents were also tendered in evidence, including a 26 page Written Statement authored by KAT (with the assistance of counsel). I have found this document to be a careful, thoughtful, thorough and well-organized presentation. Indeed, I have found it to frequently be of more assistance than many if not most of the other individual documents in the plethora of medical and meta-medical documents placed before me.

3The GWL LTIP policy which governs the provision of disability benefits distinguishes between what are colloquially referred to as “own occ” and “any occ” benefits in its definition of “Total Disability”:

“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 … After the first 30 months of total disability, “Totally Disabled” shall mean he is unable to perform the

essential duties of any occupation for which he is reasonably fitted by education, training or experience.

4Thus, the any occ period typically commences some 30 months after the initial date of disability.

5After initially denying her claim, GWL determined (in April 2015) that KAT had been totally disabled from July 31, 2014. It later (in September 2015) revised that determination to conclude that the disability had commenced on May 1, 2014 and that her LTIP benefits would be paid retroactively to November 28, 2014.

6By July 2016 a GWL Rehabilitation Consultant had determined that KAT was “capable of resuming her sedentary occupational duties … on a graduated basis”. And by letter dated August 24, 2016, KAT was advised by her GWL case manager, that a gradual return to work plan had been approved to commence on September 2, 2016. It was to begin with two four-hour work days per week, increasing thereafter, over an eight week period, to full-time hours by October 24, 2016. She was advised that, no further benefits would be paid during the own occ period after October 21, 2016.

7The date upon which the own occ period ends and the any occ period commences is commonly referred to as the “change of definition” (“COD”) date. As already outlined, different definitions of total disability apply to these two periods. The letter outlining the gradual return to work plan indicated not only that that no further own occ benefits would be paid beyond October 21, 2016, it also declared that KAT would “not qualify for the change of definition of disability which is effective November 2, 2016”.

8KAT did attempt a gradual return to work. Its commencement was delayed and began on September 14, 2016. The end date of October 21, 2016, after which time GWL expected KAT to have resumed full time hours, remained in place.

With the possible exception of the very first week back to work (when she worked two four-hour days), KAT was unable to meet the targets imposed by GWL. On September 30, 2016 the union, on behalf of KAT, filed the appeal of GWL’s decision to terminate benefits, which is now before me.

9When the parties initially appeared before me the issue of whether KAT was totally disabled pertained to both the own occ (from October 21, 2016 to the COD) and the any occ (continuing from the COD) periods. However, during the course of the proceedings, the parties were able, on a without prejudice basis, to resolve issues pertaining to the own occ period. It subsequently became clear, however, that (given inconsistent pronouncements by GWL) there may be some residual lack of precision regarding what date in November marked the end of the own occ period and/or the start of the any occ period. The parties revised the former paragraph seven of their agreed facts (which is hereto appended, as revised) so that this question need not be resolved now nor, possibly, at all.

10Thus, the only question before me now is whether KAT was, as of November 2016 and following, totally disabled within the policy definition that pertains to the any occ period, i.e. was she “unable to perform the essential duties of any occupation for which she is reasonably fitted by education, training or experience”.

The facts – an abridged overview

11The narrative in this case commences, certainly as KAT sees it, in the summer of 2013 with a two-week trip to the Caribbean. There she received a number of insect bites, which took some eight months to completely heal. A couple of weeks after returning home, she began to experience some slight and infrequent pain in her right shoulder. By November or December 2013, the pain had escalated to become daily, constant and unbearable. During the

course of 2014, KAT began to take an increasing amount of time off work. But she was motivated to complete a project she had been working on in a seconded position at the Ministry of the Attorney General. She completed the project in August 2014 but thereafter did not return to work at all until the commencement of the GWL graduated return to work plan implemented in September 2016.

12After her LTIP claim was approved (in April 2015, as revised in September 2015), KAT participated in rehabilitation opportunities offered through GWL. A slightly more detailed review of this treatment will be instructive.

13GWL, in May 2015, determined to refer KAT for a Chronic Pain Program Assessment. She attended with Dr. Joel Bordman, a physician practicing in Pain and Addiction Medicine and also attended with LifeMark Health, an interdisciplinary rehabilitation and treatment clinic (Dr. Bordman was the Medical Director of its Interdisciplinary Chronic Pain Program, “ICPP”). The conclusion of that assessment was that participation in an interdisciplinary pain rehabilitation program was clinically indicated. I linger on this aspect of my abridged narrative for two reasons.

14First, Dr. Bordman, a physician initially selected by the insurer, went on to not only participate in her treatment through LifeMark, but later, and over the course of ensuing years, to become one of KAT’s attending physicians – his reports and notes are omnipresent in the medical documents placed before me and span the years from 2015 to 2018.

15Second, it appears to me that Dr. Bordman, in some of the earliest days of our narrative, may well have captured the essence of the conundrum which is the primary undercurrent of the ongoing dispute between the parties. In his very first assessment he opined that, even without a specific etiology of her chronic pain, he was satisfied that KAT met the criteria for a Chronic Pain Disorder. And the LifeMark assessment (co-authored by Dr. Bordman and the ICPP

program director) offered the following more general observations about chronic pain, with a conclusion focussed on KAT:

Pain itself is defined as “an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage”. Pain is subjective, multifactorial, and in the case of chronic pain, often experienced in the relative absence of organic finding, tissue damage, or structural abnormality. Indeed, numerous research findings have demonstrated the poor correlation between positive radiological findings and the presence or absence of chronic pain. Thus, an absence of finding of an identifiable physical or medical abnormality is not considered a justifiable reason to reject a diagnosis of chronic pain syndrome; in fact, it is often a common occurrence among chronic pain sufferers. Therefore, while there often is no abnormality or physiological or anatomical structure in chronic pain patients, they do exhibit loss of psychological, physiological or anatomical function. While there are various operational definitions of chronic pain syndrome, the following is a summary of consensus opinions in the literature:

• The primary complaint is of enduring or recurring pain

• The pain lasts over 6 months from the time of injury or well beyond the normal healing period that would be expected

• The pain is associated with significant and reliable impairment of functional status as experienced by the patient

• The degree of functional impairment typically exceeds or occurs in the relative absence of medical or physical findings

• The pain has responded inadequately to appropriate medical, physical, or psychological care

• It often involves the presence of chronic pain yellow flags including fear of movement, pain catastrophizing, mood disturbance, and employment issues

• The credibility of patient’s symptom reporting has been established using well validated tools for this purpose

And indeed, we would strongly submit that [KAT] meets the above-noted criteria, which would suggest that she is now suffering from a bona fide chronic pain syndrome, which requires immediate and appropriate intervention.

[emphasis in original, footnotes not reproduced]

16KAT participated in the ICPP from August to December 2015. LifeMark’s final report on the conclusion of the program included the following:

Medically, she is not able to return to work full-time. It is hoped that she will soon be able to return to work on a part-time basis and gradually increase her hours. Her commute to work is 90 minutes. This may prove problematic from a practical standpoint. She may need to work from home more than she did in the past. Overall, the team opines a graduated return to work would need to be implemented. Given the effects of pain, fatigue, and associated cognitive difficulties, it is unclear whether [KAT] would be able to graduate to her full pre-disability hours and duties. Indeed, [KAT] presents with a complicated cluster of multifaceted symptoms which requires further intervention to maximize her recovery.

17Shortly after this report GWL began to slowly ramp up its recommendations that KAT return to work. On January 26, 2016, KAT’s GWL Case Manager noted that KAT has “medical clearance to return to work on a part-time basis – to begin her at 1d/wk at home”. It is difficult to see what possible basis, medical or otherwise, there is for this conclusion – it appears to be a creative, if misguided, amalgam of recent prior communications: LifeMark’s assertion that KAT could not return to work full-time, expressing the hope that she might soon be able to return on a part-time graduated basis (perhaps this was interpreted to mean what it does not say, i.e., that LifeMark was suggesting a current ability to return to work part-time); and notes from the GWL file (some of which KAT suggests are less than entirely accurate) indicating that KAT had “expressed a desire to gradually return to work, starting from home one day per week” and that the employer was reticent (later entirely refusing) to allow any work from home.

18In any event, GWL did not immediately implement a return to work plan. Rather, in early March, it implemented a new written plan to provide for further vocational rehabilitation, viz. physio and occupational therapy (Dr. Bordman had no direct involvement through LifeMark at this stage). The stated goal was to facilitate KAT’s “earliest and sustained full-time return to work”. A GWL data collection form described the plan as “an 8 week activation program with focus on right hand/arm use to recondition EE to perform the main tasked [sic] needed to do her job”.

19KAT returned to LifeMark for further therapy sessions between April and June 2016. On June 30, 2016, LifeMark therapists delivered their discharge report to GWL. Under “physiotherapy recommendations”, it noted “slow but gradual gains” and declared that KAT was “ready to return to her sedentary occupation”. That conclusion may be contrasted with the following observation under “Overall Progress”:

Ongoing encouragement to complete home practice was provided to [KAT], however she consistently struggled with implementing what was discussed in-session into her daily routine. Therefore, she did not experience the full benefit of the OT program, which was supported by both the subjective self-report of [KAT] as well as the objective questionnaires that showed no indication of significant improvement.

20The report also noted, under “Cognitive Testing” that KAT “declined to participate in the formal cognitive assessment, she stated she believes she is experiencing changes in cognition however, she does not want cognitive assessment to confirm her suspicion”.

21These latter two points (the quality of KAT’s participation and her having declined to undergo cognitive assessment) were pointed to by both GWL in its deliberations and also by employer counsel before me as matters which may undermine KAT’s claim. Shortly after the LifeMark report was submitted, a GWL rehabilitation consultant penned the following comment:

From a cognitive/fatigue point of view, the report also notes that the EE declined to participate in formal cognitive testing, so this cannot be used as a barrier to return to work. [T76]

22And approximately three weeks later, another GWL rehabilitation consultant recorded the following:

…EE seems to think she continues to be disabled/ complains of symptoms that have been addressed and/or health care professionals have attempted to address with a lot of resistance from EE to put forth full effort in addressing. [T82]

23I will return to these points later.

24It was at, more or less, this point in the narrative that GWL decided to implement a gradual return to work leading up to a return to full-time employment, with the stipulation that once the gradual return to work period was completed, KAT would no longer receive any further benefits and, certainly, none in respect of an any occ period, which would have commenced in November 2016. This decision ultimately culminated in the August 24, 2016 letter from GWL to KAT referred to earlier. And, as already indicated, the actual return to work plan was delayed, but the period was compressed to maintain the October 21, 2019 cut-off date. On September 30, 2016, the union filed an appeal of GWL’s decision to terminate benefits. KAT made efforts to return to work during the return to work period, but these were largely unsuccessful. She never returned to full-time hours. And from October 21, 2016 to January 25, 2017 she worked only sporadically, and not all since.

25The union did not assert that the attempted return to work was in any way inappropriate. It accepted that the circumstances were such that it was not unreasonable to test that route. But it was not long after that point that the views of the parties diverged, never to cross paths again. The union asserts that the failure of the return to work effort demonstrated the complainant’s ongoing total disability. On the insurer’s side, there was never any wavering from the view that, as of October 21, 2016 (the ill-fated end of the return to work effort), KAT was no longer totally disabled (subject of course to the parties’ without prejudice settlement of all own occ claims).

26I have already adverted to the impressive number of medical and meta-medical documents the parties tendered (and these culled from the complete insurer file that was, by several factors, far more voluminous). The file included reports, notes and observations from one or more family physicians, rheumatologists, neurologists, pain specialists, psychologists, physiotherapists,

occupational therapists, kinesiologists, behavioural therapists, sleep specialists, cardiologists, dermatologists, otolaryngologists, ophthalmologists, physical medicine and rehabilitation specialists, and psychiatrists.

27The dispute between the parties crystallized in September 2016 when the union initiated the instant appeal. The preponderance of the significant medical evidence before me postdates the commencement of the appeal. That, of course, is not surprising, given (own occ matters having now been resolved) that the only issue before me relates to the any occ period, which did not even commence until some two months after the appeal was lodged. The record discloses that GWL was asked, on more than one occasion, to reconsider its decision in the light of “new” medical evidence. New, in this instance, includes fresh medical evidence as well as medical information not previously submitted to the insurer. But, in any event, by April 2019, when GWL issued its last denial of the appeal, it had all of the relevant documentation (including KAT’s Statement and the reports from two independent medical examinations (“IME”s) which the parties cooperated to secure) at its disposal. And, all of that information was placed before me shortly thereafter when the current proceedings commenced. There is no need or utility in assessing each of GWL’s successive denials (there were a number) on the basis of the information then before it. Rather, the question before me is to be determined on the basis of all of the information now before me. And, the issue is whether KAT is totally disabled and not whether GWL’s contrary determinations were reasonable.

28I do not find it necessary to (as the parties largely did) individually review many of the various medical documents filed before me. Having reviewed all of that medical information, I am of the view that for our current purposes, it is sufficient to consider four of the most recent and comprehensive medical documents. These consist of the two IMEs referred to as well as (what may be viewed as) the responses of Dr. Bordman and Dr. Warsame. The former has already been introduced; Dr. Warsame has been KAT’s family doctor

since at least June 2016. I will review these documents in chronological order of their preparation.

29The first IME, dated September 13, 2017, was prepared by Dr. Michael Devlin, a physiatrist, specialist in physical medicine and rehabilitation. He performed and recorded an extensive review of KAT’s history, current subjective complaints, personal/social information and offered observations of his examination. He noted the many medical documents he had reviewed and concluded with responses to the specific points he was asked to address.

30He identified KAT’s primary and secondary diagnoses as “chronic widespread pain” and “right adhesive capsulitis”. His responses also included the following:

I have reviewed all [KAT’s] current symptoms; other than her findings in keeping with right adhesive capsulitis in her shoulder, there are no objective findings with respect to the rest of her symptoms.

[KAT’s] history is that her limitations are due to ongoing pain, as well as fatigue; my diagnosis is that of chronic widespread pain.

In such a setting, there may be no findings on examination of note.

I believe [KAT’s] prognosis is guarded considering the length of time she has had ongoing widespread pain complaints.

At this juncture, given [KAT’s] history that she can only participate in functional activities at home with respect to self-care activities on a very limited basis and slowly, I do not think the return to work is actually in her mindset at the moment.

[KAT’s] history is the work she has done in the past has been essentially desk and office type work and sedentary.

Individuals with ongoing chronic widespread pain may limit the level of functional activity to a greater or lesser extent, but that is a subjective decision.

I do not see any indication to impose any medically based restrictions upon [KAT] from my perspective, other than the fact she would not be able to use her right upper extremity far overhead. However, that is not typically required in office type work.

… [KAT’s] ability to return to work is dictated by her own subjective response to her pain complaints.

Certainly, a graduated return-to-work plan could be suggested, but given [KAT’s] history with respect to her difficulty doing functional activities at home I do not believe this is likely to be successful.

Other than [KAT’s] inability to work far overhead with her right arm, I do not believe there are any functional limitations or restrictions to be imposed upon her.

31The second IME, dated September 14, 2017, was prepared by Dr. Ash Bender, a psychiatrist. Dr. Bender provided elaborate details of his review of the file (which, among other things, included a review of “an AMAPCEO job description”) and the patient history, the results of his mental status examination and testing. Under the heading Summary and Recommendations, he included the following:

Psychological Issues

[KAT] did not present as certifiable, according to the Mental Health Act of Ontario. She appeared capable of consenting to and/or refusing consent for psychiatric treatment. There was no duty to inform present. I did not have any concerns regarding her ability to manage her financial state and/or to operate a motorized vehicle.

Reliability of Self-Report

According to review of file information and based on [KAT’s] self-report, she appeared to be a reliable and consistent historian. She endorsed high reported levels of impairment due to physical symptoms and appeared to minimize psychological distress.

32Dr. Bender’s report concluded with responses to specific questions and included the following:

… [KAT’s] reports of cognitive difficulties were consistent with that observed during the examination, with no evidence of intentional feigning or exaggeration on tests of malingering of short-term memory.

Utilizing the Global Assessment of Functioning ratings scale, her GAF rating would equal 51– 60, suggesting moderate to serious impairments in social and occupational functioning.

[KAT] is self-limiting many of her activities due to reported fatigue and believes she requires more time rather than increased intensity of intervention to recover. She appears to be gravitating towards passive coping without a structure schedule, possibly due to minimization of depressive symptoms.

[KAT] has made modest improvements to date and is reporting more recent improvement in her cognitive functioning, which was a significant barrier to her productivity during her past return to work attempt. She initially reported limitations due to pain that has partially responded to treatment with analgesic medications. However she is endorsing persistent issues with fatigue in the context of insomnia, headaches, physical deconditioning.

[in response to a specific question regarding own occ:]

Based on [KAT’s] self-report and job description, she does not appear capable at this time of fulfilling the major roles and duties of her own occupation. She continues to note significant limitations in physical functioning due to pain as well as fatigue and inability to multi-task within an office-type environment. There are no specific psychiatric restrictions though she identify [sic] some cognitive limitations if working in office-like setting.

[in response to a specific question regarding any occ:]

Based on her current level of functioning, she is not totally disabled for psychiatric reasons. She demonstrates the ability to engage in some activities over the course of the day and fully participated in the 3.5 hour assessment, with evidence of some fatigue. Overall, cognitively, she had intact communication skills, though required increased time to complete written tasks such as self-report questionnaires due to reported distractibility from normal expected levels of noise in an office-type environment

[and in response to a question regarding prognosis:]

Her prognosis for return to work within the next six months is guarded considering the following factors:

Positive

• Long duration with employer

• Good job satisfaction

• Improving cognitive functioning and pain

• Good supports

• High employment grade

• Good pre-morbid functioning

Negative

• Increasing duration of disability

• Self-limiting functioning

• Medically unexplained symptoms

Barriers

• Poor physical stamina

• Passive coping

33With the benefit of reviewing these IMEs, Both Drs. Warsame and Bordman took the opportunity to respond.

34Dr. Warsame, in a letter dated April 20, 2018 offered the following:

I read the independent medical evaluation from Dr. Ash Bender and Dr. Michael Devlin. I am [KAT’s] family physician. I agree with a lot stated in the report, especially with reference to return to work. [KAT] will not be successful as proven the last time she attempted to return to work in 2016. Her complaints of pain, neuropathy and fatigue increased.… no matter how motivated she was, she just was too tired to keep up with the demand of the schedule. She will tell you with the gradual return to work she had attempted in 2016, she wasn’t asked to do much but felt so fatigued in the process.

A major barrier for [KAT] is that she continues to develop additional symptoms that aggravate her pain condition. In late October 2017, she developed both ocular pain and pulsatile tinnitus. The symptoms have caused her extreme stress as the ocular pain resulted in episodes of sever[e] pain lasting for 8 hrs or more continuously. She has been seen by two neuro-ophthalmologists to address this issue. They have determined that she has high ocular pressure and that her pain is in line with her current chronic pain syndrome. The tinnitus and ocular symptoms which have affected her ability to sleep, relax and practice meditation.

Her prognosis to me is not guarded it is poor. … she is facing a future of persistent pain, debilitating symptoms and social and financial loss.

35Dr. Bordman’s contribution, in a letter dated April 25, 2018 included the following:

… I have treated [KAT] since 2016. I have reviewed the reports from Drs Bender and Devlin. Both doctors feel that [KAT] is a credible patient who is experiencing chronic pain and its related symptoms. In addition, the doctors have concluded that her prognosis is guarded and that her ability to return to work in any form is unknown.

I have found [KAT] to be consistent in her complaints of chronic pain, severe fatigue, cognitive difficulties and insomnia. In recent months she’s developed severe ocular pain, visual disturbances and tinnitus. These new symptoms coincided with an increasing activity during the summer and autumn of 2017. [KAT] also experienced exacerbation of her symptoms in late 2016 resulting [from] her unsuccessful attempt to return to work.

[KAT] has always maintained the desire to return to work, however, her current symptoms make it improbable for her to be a productive or reliable employee. Despite the setbacks, [KAT] remains an optimistic patient who continues to engage in a wide range of treatments to assistant management of her chronic pain syndrome.

36It will also be helpful to consider KAT’s statement. It comprises 23 pages and 126 paragraphs. The following extract provides a picture of KAT’s daily life, as she describes it:

98. In terms of my day-to-day schedule, on a regular day, I don’t wake up before 10:30 am or 11 am. If I wake up earlier than this, I tend to be fatigued for the rest of the day.

99. Most mornings, I take my medication first thing when I wake up. I keep water, juice and snacks in my room to take with my medication. I also have a coffee machine in my room for two reasons: first, it saves me the trip to the kitchen in the morning and second, the caffeine reduces my ocular/migraine headache pain. Often, if I am in extreme pain I have trouble taking my medication right away because I find it difficult to move. It might take me an hour before I am able to move to reach the pills on my bedside table.

100. If I have a busy day scheduled or simply higher than usual pain levels, I take double the amount of medication in order to cope with the pain. For example, on the day that I visited the law firm to meet in person with AMAPCEO’s lawyer on this matter, I took double the amount of medication to cope with my symptoms. To clarify, in these circumstances, I take double the dosage of medication at a single time, but I do not increase my overall dosage of pain medication for the day. So when I took two pills that morning, I was not able to take as much pain medication as I normally do in the afternoon – I had to suffer the consequences of the pain because I had taken the majority of my allocated medication for the day all in the morning.

101. Once I am awake, I might watch some television. The amount of time I can watch television for depends on how I feel. When my condition first began, I could not watch movies or any television at all. But the pain program that I participated in at LifeMark recommended that I start watching the news. I still have trouble watching programs such as CP24 because there is simply too much happening the screen and I have trouble focusing.

102. I don’t really eat properly because it takes me a significant amount of time to prepare a meal. I will normally eat cereal or leftovers from takeout food. I currently order a lot of takeout, which I did not do before I developed my condition. On occasion, I am able to make dinner, but I take shortcuts to reduce the amount of energy required. For example, I will buy ingredients that are already cut up, such as pre-cut vegetables or chicken. But on the whole, I order a lot more takeout food than I ever did before developing this condition. This increases my stress levels as I am keenly aware of the damaging health effects of junk food and processed foods on me and my kids.

103. After I eat something, I might go out to get groceries. If I only need a few things, I can go on my own. Otherwise, I will go out with my sister. I can drive, but I usually drive for 30 minutes or less. The longest I can drive without rest is probably one hour. I don’t drive if I am experiencing extreme fatigue.

104. If I go to the grocery store, by the time I get there, I am already very tired. I have difficulty with my vision. I have trouble reading the signs and navigating my way through the aisles. After 20 to 30 minutes of walking, I begin to experience pain in my hips and knees and increased shoulder and hand pain. For someone who led such an active life before developing this condition, it is almost unbelievable to me the difficulties I experience in daily life.

105. Otherwise, my days are occupied with other minor tasks. I book doctor appointments, perform light household tasks, and pay my bills. But I find that I continue to forget appointment dates or to confuse appointment dates with one another. I continue to struggle with my short-term memory. For example, I just missed my son’s dentist appointment on March 19, 2019. This appointment was only booked a week before the scheduled appointment.

106. I am able to shower and dress myself, but it requires energy and planning. If I shower one day, I might not shower for the next few days. Because I can only do three or four tasks in a day, I have to choose the tasks I am going to dedicate my energy to that day. For example, if I know that I have to attend a meeting outside of my home, I know that I

will need to spend the rest of the day in bed. I will have to plan to pick up take-out food because I won’t be able to cook for myself or for my kids when I get home.

107. I often nap during the day, although I understand that my sleep specialists recommend that I avoid napping. I find that if I don’t nap, my breathing becomes laboured and rapid. This improves when I lay down and when I sit down also. That’s why I know where all of the places to sit are when I am completing my errands. At Shoppers Drug Mart, Walmart or Costco, for example, I know where the rest areas are throughout the store so I can sit down when I need to. This is part of how I plan my errands. If there is no seat available, I sit on steps, canned food or lean against posts. I was instructed on how to use an electric cart, but I am resisting this option at this point.

108. On really bad days, when my symptoms are especially severe, I will wake up with extreme eye pain, body pain or severe fatigue. If it is eye pain, I am forced to stay in bed in the dark. I will go to the bathroom, but otherwise, I remain in bed in the dark. I eat if there is someone home to assist me or if there are snacks in my room. If it is a bad pain day, I rest in bed, sleep or watch television. If it is severe fatigue, I rest in bed and put the television on to try and stay awake. On average, I have really bad days about three times a week. Sometimes it can be a week or weeks or severe symptoms. I cannot predict whether I will have a good day or a bad day, although it is normally the case that I will have a bad day if I had a very active day the day before.

109. I experience debilitating symptoms as a result of my medical condition every day. While I am able to walk, sit, dress myself, read and drive, I experience significant pain, discomfort and limitations as I do each of these activities.

110. The reality is that every day for me is a sick day. I know that every day I will wake up with core symptoms that include moderate to severe chronic pain in my shoulders and dominant arm and hand, severe fatigue, high-pitched screeching sounds in my ears, a significant lack of energy, random electric shock pain and muscle spasms, buzzing feet and a host of cognitive issues.

111. There are also a host of other issues that I experience that fluctuate from day to day. I experience these issues periodically and unexpectedly. They vary in severity and I simply cannot prepare for them. They include severe eye pain, light sensitivity and blurred vision that generally lasts for six to eight hours and can occur several times a week. Other periodic issues include right knee and ankle pain that reduces or limits my ability to walk for a few days.

112. The random nature of the intensity and frequency of my symptoms makes it impossible to adapt. I have yet to experience a day where I am able to accomplish what I plan to do, and my plans are significantly reduced from my previous life …

37I begin with a consideration of the evidence and its treatment. There was no viva voce evidence before me, per se. The functional exception, of course, is KAT’s written statement. Union counsel had indicated that, if necessary, KAT was prepared to be sworn and to affirm the truth thereof. Neither I nor employer counsel insisted on that formality, particularly in view of employer counsel’s indication that he was not seeking to cross-examine KAT with respect to the statement, or at all. While there was no accompanying employer agreement as to the truth of all of the contents of the statement, I view this evidence as indistinguishable from evidence tendered in chief in respect of which the opposing party elects not to cross-examine. Thus, it is uncontradicted. That, however, does not necessarily preclude the employer, even in the absence of any directly contradictory evidence, to argue that KAT’s statement ought not to be accepted in whole or in part.

38The balance of the evidence is documentary and chiefly comprises notes and reports of physicians and other health care providers, other correspondence between these and GWL, internal GWL notes and communications as well as other communications between KAT and GWL. Consideration must be given to the characteristics of these different categories of evidence and their strengths and limitations.

39The employer urges me to be cautious in relying principally on KAT’s subjective self-reporting of her disability. Subjective reports can have inherent limitations. It is, of course, not sufficient for a claimant to send a note to the insurer saying: “I’m totally disabled, when can I expect my cheques?”. The insurer and common sense will require more detailed proof

supporting a claim of total disability. Such proof is typically medical in character. However, different types of disabilities afford different diagnostic capacities. Broken bones or affliction with serious disease, such as cancer, can often be readily and conclusively diagnosed through objective testing. Some diseases or conditions do not allow for such precise and conclusive diagnosis. And, further (as the employer reminded me) even where a specific diagnosis may not be controversial, a diagnosis, in and of itself, may not establish total disability. The question of the extent of the disability and its resulting impact must be weighed.

40While I do not find it necessary to set out all of the supporting medical information, I note that various of KAT’s physicians have, during and prior to the period currently in question, posited multiple diagnoses and recorded symptomologies including:

• Chronic pain syndrome

• Right shoulder adhesive capsulitis (“frozen shoulder”)

• Fibromyalgia

• Severe fatigue

• Sleep disorders

• Cognitive difficulties (attention and concentration)

• Glaucoma

• Restless leg syndrome

• Psoriasis/dermatitis

• Tinnitus

• Severe ocular pain

41The first two items in this list define two separate themes. GWL’s focus has tended to be (though not exclusively) on the latter; the union sees the former as far more significant. We have already seen the medical description of chronic pain syndrome from Dr. Bordman. Not surprisingly, consideration of this condition has not escaped judicial scrutiny. Indeed, the Supreme Court of Canada in Nova Scotia Workers’ Compensation Board v Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para 1, a case involving chronic pain syndrome and workers’ compensation, began its decision as follows:

Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or 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. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. 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.

42In a context such as ours, where (at least in respect of chronic pain) the relevant base “data” may consist largely, if not exclusively, of subjective self-reporting, it is critical to have confidence in the reporter.

43The employer pointed to two incidents it asserted ought to undermine my confidence in KAT’s presentation. One involved an instance where one of her LifeMark therapists noted that KAT, while otherwise actively participating in her therapy sessions, was failing to complete some of her homework assignments. The employer asserted that this demonstration of a motivational deficit ought to cause me to have reduced confidence in KAT’s presentation generally. However, while employer counsel, perhaps fairly, characterized the relationship between pain and motivation as something akin to a “chicken and egg” conundrum, I am satisfied that KAT’s explanation, i.e. that it was her condition and symptomology that was obstructing her ability to fully complete her assignments, is accurate.

44Similar arguments were made in respect of KAT’s reticence to undergo cognitive testing. This may have been something of a preliminary

conversation, the testing was neither directed nor arranged by the GWL. Again, I accept KAT’s explanation that, at a time of great stress regarding her health, she was somewhat loathe to undergo testing for fear of disclosing yet another medical issue.

45I come to these conclusions, in part, because, subject only to these two marginal exceptions (I was certainly not pointed to others) KAT’s medical and therapeutic care givers spoke with a virtually unanimous voice. They applauded both her motivation and the sincerity of her reporting.

46Indeed, in the context of these examples, pointed to by the employer in an effort to undermine KAT’s presentation, one might see some of the fissures in that of GWL. I have already noted that a consequence of the exchange between KAT and her therapist was that, at a time it was beginning to formulate a potentially unilateral return to work strategy, a GWL rehabilitation consultant concluded that this piece of information meant that, as a consequence of KAT’s declining to participate in cognitive testing, no such issues could be relied upon by her as a barrier to a return to work. This response is, at best, puzzling. The insurer had not even requested that such testing be done, apparently preferring to establish an obstacle to entitlement over securing more comprehensive medical data.

47Similarly, a notation in response to a therapist’s comment regarding unfinished homework, seems to have escalated in importance by virtue of little more than its repetition and was transformed into ongoing expressed GWL suspicions regarding KAT’s motivation. I find this to be inconsistent with the totality of the materials before me. KAT was an eager and willing participant in the LifeMark program. Indeed, she had begun to make inquiries on her own regarding a treatment plan, given the GWL delays in approving funding. Again (subject to the marginal exception noted) she was, by all accounts, an active and enthusiastic participant in various forms of therapy she underwent.

48And, I have already noted the lack of basis for the dubious conclusion by a GWL case manager in January 2016 that KAT had medical clearance to return to part-time work.

49And, I have also set out the following comment of a GWL rehabilitation consultant in late July 2016:

…EE seems to think she continues to be disabled/complains of symptoms that have been addressed and/or health care professionals have attempted to address with a lot of resistance from EE to put forth full effort in addressing.

50In my view, this entry is at least somewhat misleading and inaccurate. Some of KAT’s symptoms may have been addressed, in part (e.g. frozen shoulder) but the majority of her difficulties stemming from chronic pain syndrome remained largely impervious to treatment. The fact that health care professionals have “attempted to address” symptoms without overwhelming success is not a basis for concluding return to work is indicated. And the “lot of resistance” referred to is but the escalation of internal notations by simple repetition.

51I have referred, only so briefly, to these examples not because they are at all individually determinative in the result. Rather, they demonstrate that, even in the absence of viva voce evidence, some caution must be exercised in uncritically accepting all evidence proffered. In our case we have KAT, whose presentation is motivated, at least in part, by her desire to secure the benefits that have been denied her. We have the benefit of multiple and repeated reports from health care professionals, including Drs. Bordman and Warsame who have the benefit of prolonged exposure to the complainant and her health issues. And while all of the many professionals who have participated in KAT’s care are just that, professionals, there may possibly be a tendency toward advocacy on the part of a devoted physician. And while physicians such as Drs. Devlin and Bender (who performed IMEs) may have the benefit of objectivity associated with a lack of familiarity or therapeutic

connection, their accounts may suffer from the limitations of a single snapshot exposure. And, finally are what I have referred to as the meta-medicals. These refer to the internal ruminations by various GWL personnel. I have already pointed to some the limitations inherent in these. They are, for the most part, reports, emails and notations of non-medical personnel. These are far too numerous to review in any detail. They may suffer from the limitations associated with one of GWL’s expressed objectives: to secure KAT’s “earliest and sustained full-time return to work”. They also suffer (largely, but not always) from a lack of direct in-person contact with KAT. This is certainly the case in respect of certain reports prepared by GWL physicians. These constitute analyses of medical documentation on file without any direct contact with KAT.

52All of this is simply to say that all of the evidence which typically forms the basis of a determination such as the instant one must be recognized as potentially suffering from some limitations, even where there are no essential facts in dispute and the only real issue is the interpretation of those facts for the purposes of determining whether an employee is totally disabled within the meaning of the LTIP plan.

Decision

53Ultimately, I have concluded that the complainant and the union must prevail in this matter.

54There are some further aspects of the context in which the parties’ positions crystallized which merit some brief review. I have already observed that Dr. Bordman, very early (June 2015) in our narrative, may have identified a principal concern when he found BOTH that the complainant was suffering from a bona fide chronic pain syndrome AND that it is common for there to

be an absence of any finding of identifiable physical or medical abnormality in persons suffering from such an affliction.

55Another relatively early (April 2015) notation may serve to capture the orientation of GWL, at least at the outset. The GWL physician (who did not examine KAT but assessed the medical documentation on file, hence producing a “meta-medical”) offered the following in response to a GWL Case Manager:

• Current level of impairment is moderate

• Current R[estrictions] & L[imitation]s are for no above shoulder use of right arm, limited use of right upper extremity, and no heavy lifting or carrying (2-3 kg. lift limit)

• Frozen shoulder has a protracted recovery however temporary R[estrictions] & L[imitation]s only are expected

• No additional medical information is needed

56In many respects, GWL appears to have viewed KAT’s issue(s) as temporary and fleeting, primarily (even if not exclusively) musculoskeletal in nature. Thus, while KAT’s first stint at LifeMark was under the auspices of the Interdisciplinary Chronic Pain Program (and Dr. Bordman), her later return to LifeMark was in the Interdisciplinary Rehabilitation Program (without Dr. Bordman’s direct participation). Indeed, it was the LifeMark Discharge report (at the end of June 2016) which marked the commencement in earnest of GWL’s plan to return KAT to work. And there is an aspect of GWL’s references to and incorporation of a phrase in that report which I find telling. The LifeMark therapists concluded that KAT was “ready to return to her sedentary occupation” [my emphasis] and continued with conclusions regarding functional outcomes and range of motion.

57The focus on “sedentary”, which was, to some extent, taken up by the employer before me, is of concern for two reasons. First, it reprises the focus on musculoskeletal issues in the context of a condition which is primarily one of chronic pain syndrome.

58However, it also raises a further issue pointed to by the union. Even assuming KAT is capable of performing (at least some) physically undemanding sedentary work, it does not necessarily follow that she is therefore not disabled within the meaning of the LTIP policy. As the union pointed out, the “any” in “any occ” is something of a misnomer. An ability to perform some minimal work is not sufficient to negate total disability in the any occ period. The policy definition is tied to an inability to perform the essential duties of any occupation for which the claimant “is reasonably fitted by education, training or experience”. It is perhaps striking that throughout the documentation filed in these proceedings there is a dearth of references to either the requirements of KAT’s former position or any consideration of what type of job (apart from a sedentary one) for which KAT might, at least in GWL’s view, be reasonably fitted. Even the briefest review of KAT’s home position readily discloses that its principal challenges are intellectual, not physical. KAT is a member of a classification based bargaining unit. The bargaining agent is an association of “management, administrative and professional” employees. That description might, at least colloquially, be of some assistance in clarifying the parameters of an occupation for which KAT would be reasonably fitted by education, training or experience. In view of my ultimate conclusion, however, I need not consider this aspect of the case any further.

59I am satisfied that the combined effect of the most recent reports prepared by Drs. Bordman and Warsame and KAT’s Written Statement paint a persuasive picture of an employee who is totally disabled within the meaning of the any occ definition found in the GWL LTIP policy. The combined effect of the two recent IMEs is, at best equivocal. And even those expressed considerable doubt about the probable success of any return to work effort. And while they do point to self-limitation and the subjectivity of symptomology, Dr. Bender, at least, confirmed that KAT appeared to be a “reliable and consistent historian” and that there was “no evidence of intentional feigning or exaggeration on tests of malingering of short-term

memory”. This is consistent (but for some marginal exceptions dealt with earlier) with the assessments of the many health care professionals who have come into contact with her.

60In a case of Chronic Pain Syndrome, as Dr. Bordman suggested at the outset, it may be that it is the patient and not medical science that is the most reliable source of information regarding symptomology, conditions and abilities. Such reports must be credible to be accepted. KAT’s Written Statement paints a distressing picture of her abilities and day to day life experience and capacity. Her description is entirely consistent with Dr. Warsame’s of her as a patient “facing a future of persistent pain, debilitating symptoms and social and financial loss”. KAT has been endorsed by many professionals as a reliable reporter. The employer felt no need to cross-examine her. Her description is consistent with and supported by physicians who have treated her over a significant period of time. I have not been presented with any persuasive basis to doubt the veracity of her accounts. I believe her. I am consequently satisfied that she is and was (at the COD date) unable to perform the essential duties of any occupation for which she is reasonably fitted by education, training or experience, and, therefore, totally disabled in the any occ period.

61I hereby remit this matter to the parties to resolve in view of my finding herein. I will remain seized should they encounter any difficulty in that regard.

Dated at Toronto, Ontario this 20th day of September, 2019.

APPENDIX 1

JOINT BENEFITS REVIEW COMMITTEE

Partial Agreed Statement of Facts

1. K.A.T. was born on October 16, 1967. She is currently 51 years old.

2. K.A.T. has been an employee of the Ontario Public Service since July 7, 2008. She began work as a Service Delivery Manager with the Ministry of Training, Colleges, and Universities on January 1, 2007. At the time of the LTIP application, K.A.T. was employed as a Senior Program Advisor, Labour Market Integration Unit, Citizenship, Immigration and International Trade (Classification: 6A008).

3. K.A.T. submitted her Employee Statement on December 12, 2014. The Attending Physician’s initial LTD statement was submitted on December 4, 2014. The Employer’s statement was submitted on December 31, 2014.

4. K.A.T.’s LTIP claim was initially denied by the insurer, Great West Life (GWL), via letter dated February 18, 2015 because, based on the information they had received, she did not meet the definition of “totally disabled”.

5. Following an appeal of the initial denial, additional medical information was submitted and considered by GWL. K.A.T.’s LTIP claim was approved by letter dated April 24, 2015 with a date of total disability of July 31, 2014. LTIP benefits were to begin as of January 31, 2015.

6. Following the receipt of additional medical information, by letter dated September 2, 2015, K.A.T. was advised that her date of “total disability” has been revised to May 1, 2014, and the dates that benefits were to begin were revised as well.

7. Letters in the GWL file set the Change of Definition Date (being the date that K.A.T. was disabled from performing “any occupation”) as November 1, November 2, and/or November 28, 2016. For the purposes of determining whether or not K.A.T. meets the definition of being totally disabled from performing “any occupation”, the parties agree to proceed on the basis of a Change of Definition date of November 1, 2016. However, in the event that Arbitrator Herlich determines that K.A.T. is not totally disabled from performing “any occupation”, it remains open to the parties to return to Arbitrator Herlich to argue whether November 1, 2016 is the correct “Change of Definition” date.

8. By letter dated August 24, 2016, K.A.T. was advised that she has been approved for a gradual return to work under the rehabilitation provisions of

the GWL plan from August 29, 2016 until October 21, 2016. K.A.T. was further advised that as of October 21, 2016, she will no longer satisfy the definition of disability under the plan and LTIP benefits will cease. She was further advised that she does not qualify for the change of definition of disability effective November 2, 2016.

9. The planned gradual return to work was delayed. K.A.T. returned to work on September 14, 2016. The rehabilitative employment program was not extended beyond October 21, 2016 K.A.T. received LTIP rehabilitative employment benefits while attending work between September 14, 2016 to October 21, 2016.

10. The parties agree that during the period of rehabilitative employment, K.A.T.’s work schedule and absences were as follows:

During the week of September 12, 2016, K.A.T. attended work for a total of 8 hours:

Wednesday: 4 hours

Friday: 4 hours

During the week of September 19, 2016, K.A.T. attended work for a total of 2 hours: Monday: 2 hours

Wednesday: K.A.T. did not attend work. She called in sick

Friday: K.A.T. had a family emergency. K.A.T.’s mother passed away on this date. During the week of September 26, 2016, K.A.T. attended work for a total of 8 hours:

Monday: 4 hours

Thursday: 4 hours

Friday: K.A.T. did not attend work. She called in sick despite her intention to work 4 hours.

During the week of October 3, 2016, K.A.T. attended work for a total of 12 hours: Monday: 4.5 hours

Tuesday: 3.5 hours

Wednesday: 4 hours

Friday: K.A.T. did not attend work as a result of her mother’s passing.

During the week of October 10, 2016, K.A.T. did not attend work. She took a combination of bereavement and special compassionate leave as a result of her mother’s passing.

During the week of October 17, 2016 K.A.T. attended work for a total of 11 hours: Monday: K.A.T. did not attend work.

Tuesday: 4 hours

Wednesday: 4 hours

Thursday: 3 hours

Friday: K.A.T. did not attend work.

11. The parties agree that following the period of rehabilitative employment, K.A.T. did not return to full time hours.

12. The parties agree that K.A.T.’s last date of work was January 25, 2017. STSP credits were used until they were exhausted on or around July 31, 2017.

13. K.A.T. currently remains out of the workplace.

14. On September 30, 2016, AMAPCEO filed an appeal on behalf of K.A.T. of GWL’s decision to terminate benefits.

15. Further additional medical information post-dating the decision to cease benefits after October 21, 2016 were provided to, and reviewed by, GWL as part of the appeal process.