IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Wright v. Nova Scotia (Public Service Long Term Disability Plan Trust Fund), 2005 NSSC 146
Date: 20050603
Docket: S.P. No. 06732(217704)
Registry: Pictou
Between:
Robert Bruce Wright
Plaintiff
v.
The Nova Scotia Public Service Long
Term Disability Plan Trust Fund
Defendant
D E C I S I O N
Judge: The Honourable Justice Douglas L. MacLellan
Heard: April 4, 5, 6, 2005, in Pictou, Nova Scotia
Counsel: Jamie MacGillivray, Esq., for the plaintiff
Colin D. Bryson, Esq., for the defendant
By the Court:
[1] The plaintiff Robert Bruce Wright claims against the defendant, the Nova Scotia Public Service Long Term Disability Plan Trust Fund, alleging that his right to benefits under the Plan was terminated without valid cause. The defendant maintains that the decision to terminate the plaintiff’s benefits was appropriate and also that he has no right to sue the Plan because a Medical Appeal Board set up within the terms of the Plan determined that he did not qualify. The Plan provides that there is no appeal from that Medical Appeal Board decision.
Background
[2] The plaintiff started work with the Department of Community Services in 1981. His job was as a family benefits worker at the Port Hawkesbury office. Prior to that, he had worked as an x-ray technician and lab worker at St. Ann’s Hospital in Arichat, Richmond County. He had come to Arichat in 1969 to work after he finished his technician’s course and had worked in his hometown of Digby, Nova Scotia for one year. After he moved to Arichat he met and married his wife Janesta in 1970. They have two daughters, Sherry and Stacey. The family benefits job with the Department of Community Services in Port Hawkesbury involved handling applications by individuals for family benefits under the Provincial Social Assistance program. The job involved determining whether a person qualified for benefits and also on an annual basis travelling to the homes of individuals who were receiving family benefits to determine whether they continued to qualify for the Provincial Family Benefits.
[3] The plaintiff indicated that for the first ten years the job remained static, however, in the early 1990's the job started to change. He was assigned additional work. Initially that was as a family court worker which involved attending Family Court two days per week and doing in-take for the Court. It also involved being responsible for the enforcement of family court orders which required the payment of child and spousal support. The family court work later also included responsibility for the new Adult Protection program dealing with suspected cases of adult abuse and neglect. That involved more travel to investigate the living conditions of the client involved.
[4] He testified that the adult protection work was particularly taxing and frustrating because of the restrictions placed on his powers to deal with the types of problems he encountered. There also was a lack of resources available to solve problems once uncovered. He said that many times doctors would not co-operate with providing reports for cases he was bringing before the Court. He recounted one case of a man who was living in really bad conditions but had no place to go. He said he had to arrange for him to be admitted to the hospital to get him out of his home which was in really bad shape. He said he would constantly worry about some of the people he dealt with because of their circumstances and as a result he could not sleep. He said he would toss and turn all night thinking about his clients circumstances. In addition to the family benefit caseload and the family court caseload including the adult protection work, he was also charged with the responsibility to handle home improvement loans for his family benefits clients. That involved setting up the loan with the Bank so that the clients could do renovations to their homes.
[5] He explained that he had clients that lived over a very wide area ranging from Port Hawkesbury to L’Ardoise, Richmond County and to Port Hood and Lake Ainslee in Inverness County. He said that travel took a lot of his time. He said that the workload became so hectic that he simply could not handle it. He said he would go to work at 6 a.m. to work on the reports he had to prepare and then would go in to Court until about 2 p.m. after which he would go on the road checking on his clients. He said on a regular basis he would not get home until seven or 7:30 p.m. He said he had up to 400 cases on the go at any one time.
[6] He said that the work got to the point that in late 1994, he started hoping that he would get sick or have a car accident so that he could get away from the job. He said his life was spinning out of control and there was no relief in sight.
[7] In early 1995, he went to see his family doctor, Dr. Lawrence MacNeil, who recommended that he stop work. He did that on January 18th, 1995. Dr. MacNeil filed a report dated January 28th, 1995 with the Department of Community Services indicating [Exhibit 2, Tab 1] that the plaintiff was suffering from “major depression/job burnout”.
[8] The plaintiff said that he took some sick leave and in May 1995, he filed a claim under the Long Term Disability Plan [LTD plan] operated by the defendant. In that application for benefits the plaintiff indicated that he was suffering from major depression and job burnout. He indicated in that report that he last worked on January 18th, 1995, and that he could not concentrate on his duties and was being treated by Dr. Lawrence MacNeil, his family doctor, who had referred him to a psychologist Chris Tragakis, in Antigonish, and to a psychiatrist Dr. Paul Sheard in Sydney. He noted that he had seen Mr. Tragakis in early April 1995 and Dr. Sheard on May 24th, 1995. The plaintiff indicated in that application that he was advised by his doctor “to keep away from stresses”.
[9] On May 25th, 1995, Dr. Paul Sheard, a psychiatrist practicing in Sydney, Nova Scotia, wrote to Dr. MacNeil about the plaintiff. He said:
MENTAL STATE EXAMINATION: He was alert, coherent, cooperative. He was mildly depressed and anxious. There was some evidence of psychomotor retardation and lack of spontaneity of speech and facial expression.
IMPRESSION & RECOMMENDATIONS: I fully agree with you that he needs an extended time off his work in order to recuperate. I am somewhat encouraged by his recent decision to acquire a canoe and develop this as a hobby. This together with his home renovation interest should provide him with the spark to recharge his batteries over the next few months. I would be inclined to keep the medication the same. If he has any suggestion of slipping mentally, I would not hesitate to increase the dose further to 150 mg a day. If for some reason you feel that he has a major relapse with the drug in my absence; then, after a wash out period of week or so, it would be reasonable to try an SSRI such as Luvox between 50 and 150 mg a day or the new SNRI, Effexor in a dose of between 37.5 mg a day and 150 mg a day. Hopefully, this will not be necessary. I would like to review Bruce in several weeks and will be in touch at that point.
[10] Dr. Sheard also completed a psychiatric questionnaire on the plaintiff. He indicated under primary diagnosis “major depression”.
[11] The plaintiff said he was told by Dr. Sheard that he could put him in the hospital if he wished, but he felt personally that he did not need that and that he had family support at home. He said he discussed that issue with is wife and she was okay with that approach. He said their girls were 19 and 17 years old at the time.
[12] The plaintiff was asked about his job prior to his stopping work. He said he could not concentrate to write reports and he could not meet deadlines. He said that his home life was affected and that he did not really do anything at home except watch T.V.
[13] He said that after he stopped work, he was happy that he did not have to go to work and make the many decisions he normally had to make at work. He said he started taking a number of different anti-depressant medications as advised by his doctors. He said they settled on Serzone and that it seemed to work. He said that it was difficult to go to see Dr. Sheard because his office was in Sydney which was about an hour and a half drive from Arichat.
[14] He said that during the first year being off work he did a little woodworking for his wife’s tole painting and helped around the house. He said that his social activities were reduced considerably. He said he used to be involved with the local Credit Union Board and was Secretary of the Knight’s of Columbus and on the executive of the local Legion. He also had previously been a member of the County School Board up until 1989.
[15] He said that he was approved by the defendant for long term disability benefits and received these benefits until December 10th, 1997. In February 1997, he was approved for Canada Pension Disability Benefits. These benefits were backdated and effective to May of 1995.
[16] The plaintiff was advised in July 1997 that his disability benefits would be terminated effective December 10th, 1997. He was also advised at that time that he had the right to appeal the decision to terminate the benefits. He did that on July 24th, 1997. On July 30th, 1997, his appeal request was acknowledged by the defendant and he was advised the grounds upon which his appeal would proceed and that [Exhibit 2, Tab 36]:
Medical Appeal Board
The Medical Appeal Board consists of one or more qualified medical doctors, whose decision (to be rendered within 14 days of the hearing date) is final and binding on all parties, and not subject to any further action. The Appeal Board conducts hearings at the offices of the claims administrator or other location to be determined.
Grounds of Appeal
You appeal is on medical grounds only, and the evidence called must have reference to your disability as of the date of the decision of the claims administrator.
[17] The plaintiff’s appeal was heard on March 6th, 1998 in Halifax. The plaintiff attended along with a representative from his union, The Nova Scotia Government Employees Association. On March 12th, 1998, the plaintiff was advised by Dr. Byron Reid, the doctor who heard the appeal that: [Exhibit 2, Tab 60]
I am writing to inform you that your Appeal has been denied.
I agree with the staff of Maritime Life that your medical problems do not support a claim for Long Term Disability as defined under the Plan.
I feel that your condition is primarily related to job stress and alternate employment should be considered.
[18] In March, 2002, the plaintiff started this action. In his Statement of Claim he alleged that the termination of his benefits under the LTD plan was in breach of the Plan provisions and claimed that he was disabled as that is defined under the Plan. He claimed for arrears of benefits back to December 10th, 1997, along with general and special damages and pre-judgment interest.
[19] The defendant filed a defence alleging that the plaintiff’s action should be dismissed because he was not disabled and mainly because since he had exercised his right to appeal the defendant’s decision to the Medical Appeal Board and lost, he had no right to sue for benefits.
Issues
[20] Both Counsel have agreed that the central issues before the Court are as follows:
[21] (1) Does the exercise of the plaintiff’s right to appeal to the Medical Appeal Board established under the LTD plan, bar his civil action against the defendant, and if not, should it be barred because of the res judicata principle?
[22] (2) If the plaintiff’s claim is not barred is he in fact disabled as that term is defined under the LTD plan?
Issue One
[23] The Court has before it the actual wording of the LTD plan and I also heard evidence from Mr. Ronald Pink, a lawyer involved with the drafting of the Plan’s terms. Mr. Pink testified that in 1986 he was acting for the Nova Scotia Government Employees Association and was asked to co-operate with the Government of Nova Scotia to set up a long term disability program for all government employees including union members and other non-union government employees. He testified that the government had a pool of money which it intended to use as a capital fund for the program and that the members of the Plan would pay into the Plan on a monthly basis.
[24] Mr. Pink explained that a trust agreement was entered into between the government and the union by which each party would appoint four members to a Board of Trustees. They would be responsible for setting up the LTD plan and in ensuring that appropriate funding was in place to cover the possible benefits payable under the Plan.
[25] In the course of setting up the Plan, Mr. Pink said it became clear that the Trustee should not be involved in the actual decisions of whether a person qualified for benefits or not. It was recognized that could cause problems for the Trustees considering their relationship to possible applicants. Therefore, it was agreed that an independent agency would be hired to handle the day-to-day claims made against the Plan.
[26] Maritime Life Insurance Company was chosen to do that on behalf of the Trustees of the Plan. Mr. Pink said that he was involved in the drafting of the language used in the Plan and that it provided for an appeal process to an independent medical board on issues involving medical grounds only. He explained that where Maritime Life decided that a person was not entitled to benefits under the Plan because that person was not disabled, the claimant could, as Mr. Wright did here, file an appeal. Once the appeal was filed the Trustees would appoint an independent medical person, normally a doctor, to hear the appeal. That doctor was charged with the responsibility to review the evidence used by Maritime Life in denying the claim for disability and also could receive additional medical evidence from the applicant after the notice to terminate was issued. Mr. Pink said the procedure was intended to be informal and that the appellant had the right to have legal counsel attend the Medical Appeal Board hearing. He said that on a number of occasions he attended such hearings on behalf of clients. He said that most times a claimant would have a union representative with him if he was a union member. Mr. Pink pointed out that the employer, the Government, did not have the right to appeal from a decision by Maritime Life to grant benefits under the Plan. He said that the definition of disability had two stages, the first being the first 30 months of disability which related to the employee’s own occupation after which the Plan mandated that the person would have to be disabled as follows.[Exhibit 2, Tab 33]
Disability/disabled means the complete inability, as defined from time to time in Guidelines made pursuant to this Plan, of an employee, because of illness or injury, to perform the regular duties of his/her occupation during the applicable elimination period and the next 30 months of any period of disability. Thereafter, an employee remains disabled if he/she is unable to engage in an occupation for remuneration or profit for which the employee is or may become fit through education, training, experience or rehabilitation, which occupation pays not less than 80% of the current rate of the position, class and step he/she held prior to disability.
[27] The LTD plan provided that the decision resulting from the medical appeal would be final and not subject to further review.
Case Law
[28] Since 1986 when the LTD plan was set up there have been only three significant cases dealing with the issues before this Court. In the case of Kimberly Wigginton, [Decision Date: October 14th, 1994], an Adjudicator, Bruce Outhouse was asked to deal with a grievance filed by Kim Wigginton as a result of a denial by the defendant to grant her disability benefits under the LTD plan.
[29] The decision was rendered on October 14th, 1994, and in it Adjudicator Outhouse held that because the terms of the Plan established a separate adjudication process on medical grounds for appeals, they were not to be dealt with in the regular union-employer grievance process but through the medical appeal process.
[30] Based on this decision it is agreed by the defendant that if the plaintiff’s medical appeal did not involve medical grounds only the plaintiff could request the Court to determine his rights under the LTD plan.
[31] The next significant case is Holt v. Disability Plan (1998) 172 N.S.R. (2d) 1 where the Nova Scotia Court of Appeal dealt with a decision from Justice Donald Hall of the Trial Division in which he had ruled in a case similar to this one that the Medical Appeal Board, the same Dr. Reid, had exceeded his jurisdiction in finding that the claimant Mrs. Holt was not disabled according to the definition in the LTD plan.
[32] Justice Hall was dealing with an application for judicial review of Dr. Reid’s decision based on lack of jurisdiction. He determined that because Dr. Reid had failed to enter upon a proper inquiry as to the claimant’s medical condition as it applied to her engaging in any occupation capable of earning 80% of her current salary, that Dr. Reid had improperly limited or fettered his discretion thereby improperly failing to exercise his jurisdiction. He quashed the finding of the Medical Appeal Board.
[33] On appeal Justice Hall’s decision was overturned and Dr. Reid’s decision to deny benefits was approved. The Court held that since the medical appeal procedure was protected by a prohibitive clause it was not subject to attack unless it could be shown that the Board had exceeded its jurisdiction.
[34] The Court adopted the definition of jurisdictional error as set out in the case of U.E.S., Local 298 v. Bibeaualt [1988] 2 S.C.R. 1048 where Beetz, J. speaking for the Supreme Court of Canada said:
It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:
1. if the question of law at issue is within the tribunal’s jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;
[35] Bateman, J.A. writing for the Court in Holt indicated:
Obviously, the issue before Dr. Reid was whether Ms. Holt was “disabled” as that term is defined in the LTD Plan. He was to interpret and apply the Plan definition to Ms. Holt’s circumstances.
...
The terms of the LTD Plan, including the definition of disability were the subject of negotiation between the parties to the Collective Agreement, as is specified in Article 22.06 (“The agreed upon terms and conditions of the Long-Term Disability Plan shall be subject to negotiations between the parties in accordance with the provisions of the Collective Agreement”.). The development of the medical appeal system was entrusted to the bipartisan Board of Trustees. The Board through the Medical Appeal Rules, did not dictate standards or principles which Dr. Reid was to apply in reaching his decision, save as set out above. The letter of appointment imposes no additional terms. Dr. Reid was left to determine the applicable principles and the relevant facts.
...
The question before Dr. Reid can be drawn from s. 6 of the LTD plan - was Ms. Holt “disabled” within the meaning of s. 1(c). I again refer to the words of Lambert, J.A., in British Columbia Telephone:
“[63}...in a consensual arbitration case, the parties themselves set the standard by which the reasoning is to be judged to determine whether it is patently unreasonable. If the parties have conferred a consensual jurisdiction on an arbitrator by a finely conceived and drafted submission, then they themselves set a high standard by which the arbitrator’s reasoning is to be gauged. If, on the other hand, they just throw the whole problem at an arbitrator, without setting any precise question, or any principle to be applied, then the standard by which the arbitrator’s reasoning is to be judged is very considerably lower. So, in the cases of that kind, if the arbitrator adopts a rational process of applying principles to facts, and acts judicially, then, in my opinion, the Anisminic principle does not require anything more. If the arbitrator sticks to the task he is given, he is, in Lord Reid’s words, as much entitled to decide the question submitted to him wrongly, as he is entitled to decide it rightly. Where the terms of reference are broad and imprecise, the scope for both right and wrong decisions within jurisdiction is correspondingly broad and imprecise.” (Emphasis added).
...
In finding that Dr. Reid had erred impermissibly Justice Hall said:
“...Dr. Reid appears to have misunderstood his role or function. From what he said in his decision, he apparently was of the view that his role was simply to determine whether the Administrators had adhered to the ‘rules and regulations’ concerning the plaintiff’s ability to perform ‘any occupation’. I found no other reference to ‘rules and regulations’ in the record and do not understand what he was referring to unless he meant that they had followed the proper process or procedure.
“It is apparent that the Administrators of the Plan were of the view that if the plaintiff was able to do some work she ceased to come within the definition of ‘disabled’. That clearly is wrong. It is only if she was capable of engaging in some employment that would pay not less than 80 percent of her former employment income that she would cease to come within the definition. In saying as he did, that the Plan Administrators adhered to the rules and regulations concerning her ability to perform ‘any occupation’, it appears that Dr. Reid accepted the position of the Plan’s Administrators. Thus, he failed to enter upon a proper inquiry as to the plaintiff’s medical condition as it applied to her engaging in any occupation within the definition. In doing so, he improperly limited or fettered his discretion, thereby improperly failing to exercise his jurisdiction.
“A further indication that Dr. Reid misunderstood his function appears where he makes suggestions to the plaintiff as to seeking treatment and referring her to another physician. This would appear to be a backhanded acknowledgement that the plaintiff was suffering from an illness and indeed a serious illness and in need of treatment, and that the course of treatment that she was then following was not helping her.
“In dealing with the appeal in this manner I am of the opinion that Dr. Reid failed to exercise his jurisdiction as an Appeal board, which he was required to do and thereby resulting in a loss of jurisdiction.
“It appears, as well, that Dr. Reid injected into the requirements for qualifying for benefits under the Plan an ‘objective medical evidence’ standard while the Plan makes no reference to such Letter of Understanding #6 simply says that the appeal shall be on ‘medical grounds only’. Disability and disabled are defined in the Plan and these conditions are not confined to physical disabilities only, but rather to the insured being, because of illness or injury, unable to engage in employment to the extent set out in the definition. In departing from the standard of disability set out in the Plan, in my respectful opinion, Dr. Reid exceeded his jurisdiction.” (Emphasis added)
[36] Justice Bateman concluded that Justice Hall had erred in his interpretation of the facts in that case and that in fact Maritime Life had dealt with the issue of whether Mrs. Holt could do a job which would earn her 80% of her former salary. She therefore concluded that there was no error on the part of Dr. Reid which caused a lack of jurisdiction and allowed the appeal from Justice Hall’s decision.
[37] It is to be noted that this is not an application for judicial review of Dr. Reid’s decision, but in fact a request to determine if the plaintiff is entitled to benefits under the LTD plan. I am requested to make that determination in spite of the finding of Dr. Reid that the plaintiff does not qualify under the Plan.
[38] The plaintiff suggests that a more recent case supports his position. In Braithwaite v. Disability Plan (1999), 176 N.S.R. (2d) 173, the Nova Scotia Court of Appeal dealt with an appeal from a decision of Justice Edwards of this Court in which he held that an application to strike a Statement of Claim advanced by a claimant who had been denied benefits under the LTD plan and had lost his appeal, should be dismissed because it was covered by the concept of res judicata. Justice Edwards found that there were issues which should go to trial in spite of the acknowledgement by the plaintiff that he had exercised his right of appeal under the LTD plan and had been denied benefits.
[39] On appeal the Court upheld Justice Edwards decision to not strike the statement of claim. It held in a split decision that Justice Edwards was correct and Cromwell, J.A. speaking for the majority said: [paragraph 33 and 34]
The crux of Mr. Braithwaite’s claim is that he is disabled within the meaning of the Plan. The crux of the trustees’ argument on the appeal is that Mr. Braithwaite’s allegation that he is disabled was addressed and finally resolved against him by the medical appeal process provided for in the Plan. While the issue on the appeal may be expressed in various ways, in essence, it is this: Does the fact that Mr. Braithwaite’s medical appeal was denied mean that it is clear and obvious that he is not disabled within the meaning of the Plan? The trustees say the answer is yes. Mr. Braithwaite and the chambers judge say the answer is no. I agree with Mr. Braithwaite and the chambers judge.
In order to show that the medical appeal finally resolved the issue of whether Mr. Braithwaite is disabled within the meaning of the Plan, the trustees must establish three things.
1. It must be shown that the question of whether the plaintiff was and is disabled within the meaning of the Plan is purely a medical ground. This follows because the medical appeal system, as specified in the Plan, deals with medical grounds only; it does not address other questions.
2. It must be shown that the issue of disability within the meaning of the Plan has been finally and conclusively resolved by the medical appeal process culminating in Dr. Reid’s decision; in other words, the issue of the plaintiff’s disability within the meaning of the Plan is res judicata; and,
3. It must be shown that the medical appeal board decision cannot be questioned collaterally in this action.
[40] He went on to say: [paragraph 38 to 41]
What constitutes a “medical ground” is not defined in the Plan. In order to strike out the claim at this preliminary stage, the trustees must show that it is clear and obvious that the plaintiff has no claim apart from allegations that constitute medical grounds. If there are factual issues or significant questions of law which, if resolved in the plaintiff’s favour would entitle him to some relief, the claim should not be struck.
In my view, it is far from clear that the question of whether the plaintiff is disabled within the meaning of the Plan is a purely medical question. The application of both branches of the Plan’s definition of disability may well raise other than purely medical issues. While the judgment about Mr. Braithwaite’s medical condition may be a purely medical ground, the interpretation of the definition of disability in the Plan may well not be.
The distinction between matters of medical judgment and questions of contractual interpretation is illustrated by the decision of the Supreme Court of Canada in Revere (Paul) Life Insurance Co. v. Sucharov, [1983] 2 S.C.R. 541; 26 Man. R.(2d) 161. That case arose from an action on a policy of insurance which defined “total disability” as “completely unable to engage in his regular occupation”, a definition similar to that in the Plan. The issue before the Supreme Court of Canada was whether the courts below had applied the wrong legal test to distinguish total disability from partial disability. The medical evidence in the case was not disputed; the medical judgment about the plaintiff’s condition was clear. However, there remained a significant legal issue as to the correct legal interpretation of the phrase “completely unable to engage in his regular occupation”. That legal issue occupied three levels of court and gave rise to a division of view in both the Court of Appeal and the Supreme Court of Canada. This case seems to me to show that whether the plaintiff is disabled under the Plan is not purely a medical question. There was no dispute as to Sucharov’s medical condition; the dispute concerned the proper interpretation of the contract. To draw the analogy to the present appeal, it is not clear and obvious that the question of Mr. Braithwaite’s disability under the Plan is a medical ground only and therefore fully and finally resolved by the medical appeal system.
It is helpful to give two examples of arguably nonmedical issues that may arise in Mr. Braithwaite’s action. In applying the first branch of the definition of disability in the Plan, there may be an issue concerning what the employee’s “regular duties” include and what portion of them he must be unable to perform in order to fall within the definition. The Plan’s definition of disability requires that the medical judgment about Mr. Braithwaite’s condition be linked to a specific set of job duties. A final determination of the medical condition is not, therefore, a final determination of whether the plaintiff is disabled within the meaning of the Plan.
[41] Justice Cromwell also dealt with the earlier decision of the Court in Holt. He said: [paragraph 48]
It is argued that this court in Holt v. Nova Scotia Public Service Long Term Disability Plan Trust Fund et al., [1998] N.S.J. No. 497; 172 N.S.R. (2d) 1; 524 A.P.R. 1 (C.A.) (December 21, 1998) decided that the question on a medical appeal under the Plan is whether the claimant is disabled within the meaning of the Plan. I disagree with this interpretation of Holt. In Holt, it was assumed by the parties, and thus by the court, that the issue before Dr. Reid in that case was whether Ms. Holt was disabled within the meaning of the Plan. It was not argued that aspects of the definition of “disabled” are not medical grounds and there is no decision on this point in Holt.
[42] The dissenting opinion in Braithwaite was by Bateman, J.A. She found that the Statement of Claim should be struck because it was “absolutely unsustainable” and that once the plaintiff there had chosen to appeal the decision to terminate his benefits he could only attack the appeal finding by judicial review. She said: [paragraph 23]
Mr. Braithwaite chose to appeal the administrator’s decision on medical grounds. He has not challenged the decision of the Board through the judicial review process. Dr. Reid is therefore presumed to have acted within jurisdiction. The only reasonable interpretation of his decision is that he has found that Mr. Braithwaite’s medical circumstances did not entitle him to benefits. An inability to perform occupational duties because of illness or injury is a precondition to a finding of disability under s. 1(c). It matters not whether the administrator denied benefits on medical or nonmedical grounds. By appealing to the Board Mr. Braithwaite put his medical status in issue. Dr. Reid concluded from his review on medical grounds that Mr. Braithwaite is not entitled to benefits. In my view it would be impossible for a court to now find that he is entitled to benefits or was wrongly denied benefits, Dr. Reid’s decision not having been judicially reviewed.
[43] It is clear that the majority opinion rejected this approach. Cromwell, J.A. said: [paragraph 46]
The appellants argue that it should be presumed that Dr. Reid acted within the scope of his authority absent some specific allegation that the did not and absent a challenge to his decision by way of judicial review. The appropriateness of making this assumption will be considered in my discussion of res judicata and collateral attack. However, even if this assumption should be made (and I think that is far from clear), the question is not so much whether Dr. Reid acted within his jurisdiction, but what that jurisdiction is. In other words, what constitutes a medical ground within the meaning of the Plan is a key question in order to determine whether the plaintiff’s case is properly before the courts or may only be pursued through the medical appeal process. The record is not at all helpful in resolving this point. The question of what is a medical ground and how it relates to the definition of disability under the Plan are, in my opinion, triable issues.
[44] I interpret the decision of our Court of Appeal in Braithwaite as clearly acknowledging that while the Medical Appeal Board procedure is empowered to deal with medical appeals many times the question of whether a person is disabled deals with more issues than simply medical issues and if that is the case, a person is not restricted to only the appeal process.
[45] In this trial I have been presented with all the information provided to Dr. Reid at the medical appeal hearing. [Exhibit 7]. All of it dealt with only the issue of the plaintiff’s medical condition. In other words, what was his medical condition. There were clearly two positions taken at the appeal. Firstly, that of Dr. Sheard who maintained that because of his depression Mr. Wright was not able to work. He felt that if the plaintiff faced any stress he would fall back into depression and not be able to function, and secondly, from Dr. Rubens who felt Mr. Wright was not really depressed but just suffering from job-related stress which would be cured if he took a different type of job.
[46] At no time was there any evidence before Dr. Reid that would deal with the issue of whether there were jobs available to Mr. Wright which would enable him to earn 80% of what he used to earn. I interpret that to mean that Maritime Life did not consider that an issue which should be dealt with by Dr. Reid.
[47] Dr. Reid’s decision on the appeal [Exhibit 2, Tab 60] pointed out.
I feel that your condition is primarily related to job stress and alternate employment should be considered.
[48] I interpret that comment to mean that Dr. Reid had not considered alternative employment.
[49] The question has to be asked, if he did not consider alternative employment how could he determine that Mr. Wright could earn 80% of his present salary from that employment.
[50] I conclude that where the Medical Appeal Board is dealing with a claimant who is at the second stage of the disabled definition and it does not consider issues of whether the claimant can in fact do other work which would earn him at least 80% of his income, it cannot determine if a claimant is disabled as defined by the Plan.
[51] Once the Plan introduces that factor into the definition of disability it has of essence to assume that there will be evidence presented that would permit the Board to determine if the claimant can do that type of work. That was not done here because, I believe Maritime Life proceeded only on the basis that Mr. Wright was not disabled at all as suggested by Dr. Rubens to the staff of Maritime Life. This is in spite of the fact that Mr. Wright had been paid disability benefits for the previous 30 months which I conclude must acknowledge that he was disabled from his own job because of an illness.
[52] Mr. Pink in his evidence indicated that he felt that to determine whether a person was disabled from any occupation the Medical Appeal Board would have to have information about possible jobs that would enable the claimant to earn 80% of his salary. The Board would then determine whether the claimant was physically able to do these jobs. The problem with this analysis leaves open the question of whether suggested jobs would enable the claimant to earn 80% of his income. If that was in dispute, how could the doctor decide that issue since it was not a medical issue.
[53] Counsel for the defendant here argues that in this case Dr. Reid decided that the plaintiff did not have an illness but simply an inability to cope with his job. He writes in his pre-trial brief: [page 13]
It is submitted that the facts are clear that the issue before Dr. Reid was whether or not Mr. Wright had a psychiatric illness and that Dr. Reid found that he did not, stating that Mr. Wright’s “medical problems do not support a claim for long-term disability as defined under the Plan.” This was clearly a decision based upon medical grounds, and thus within jurisdiction, resulting in Mr. Wright not be entitled to LTD benefits because, as per the definition of disabled, Mr. Wright had to have a disability caused by an “illness”, not simply an inability to cope with a taxing job.
[54] I reject this argument. A review of the materials presented to Dr. Reid at the Appeal Hearing reveals that Maritime Life felt that Mr. Wright could do other work but that he could not go back to his former occupation. This position is supported by the fact they had paid him for the first 30 months when the definition referred only to his own occupation. There is correspondence in the file dealing with possible other placements for Mr. Wright.
[55] In June 1997, Dr. Mark Rubens wrote to Marg Keizer of Maritime Life after being asked to review the file. [Exhibit 2, Tab 32]
This claim has been highly suspect from the start. Obviously, this man had a difficult and demanding job. In this context, he was consuming a large amount of alcohol, and was put off work. For reasons which are not explained at all in Dr. Sheard’s correspondence, he was treated with an antidepressant. According to Dr. Sheard, he also stopped consuming alcohol.
...
The specific issue here seems to be an occupational one – this claimant felt incapable of performing the work required of him at his previous job. Possibly this job was in fact unreasonably demanding, but this is somewhat beside the point. In any case, as we discussed, this has now become, or is soon due to become, an “any occupational” claim and the specific circumstances of the claimant’s previous job are therefore irrelevant at this point.
...
My advice at this point would be that this claim be denied on the grounds of no evidence of a disabling psychiatric condition, and the issue of whether a suitable or desirable job can be found for this claimant is not relevant. This will undoubtedly be appealed.
[56] It was following that report from Dr. Rubens that Mr. Wright was advised that his benefits were being terminated.
[57] It is difficult to understand how Mr. Wright could be disabled from his own occupation and not suffer from an illness.
[58] In a memo to Noelle Baldwin dated June 24th, 1997 [Exhibit 2, Tab 30] Marg Keizer on behalf of Maritime Life said referring to Mr. Wright:
It is very obvious he cannot do his own job.
[59] It is Dr. Rubens who then changes the focus to the issue to whether Mr. Wright has in fact a psychiatric condition or not.
[60] In the termination letter sent to Mr. Wright by Marg Keizer dated July 7th, 1997, [Exhibit 2, Tab 33] she explains:
In accordance with the definition of disability, we have carefully reviewed your disability claim, including recent information from Dr. Sheard. It is our opinion that the medical documentation on file does not support a claim of total disability after the 30 months as described above. Maritime Life’s Rehabilitation Coordinator, Noelle Baldwin, has been contacted to approach your employer for an alternate position; however, please note that availability of alternate work is not a consideration regarding termination of benefits as per this Plan. (Emphasis added)
[61] This once again seems to acknowledge that Mr. Wright cannot do his own job. The logical conclusion from this material is that Maritime Life felt that Mr. Wright could do other work, but not his current job and that was why he was being terminated. If that was the issue for the Medical Board then it seems clear that the Board should have been given examples of jobs that Maritime Life felt Mr. Wright could do which would earn him 80% of his current income. No such evidence was ever presented.
[62] Dr. Reid’s written decision is telling. He suggests alternative employment but does not deal with whether such alternative employment would earn Mr. Wright 80% of his current income.
[63] If the issue before the Medical Appeal Board was simply that the plaintiff was not suffering from an illness, as suggested by counsel for the defendant, why would Dr. Reid suggest alternative employment to the plaintiff. I have no evidence before me how Maritime Life argued the issue before Dr. Reid. The plaintiff was the only person present at the appeal who gave evidence before me. His recollection of the hearing is vague and not helpful. I must therefore assume that Maritime Life simply relied on the material in their file to support their decision to terminate benefits at the 30 month stage.
[64] The file material presented to Dr. Reid does not support the argument made by counsel for the defendant. I interpret the file material as suggesting that the plaintiff could not return to his old job, but could do other less demanding and less stressful work. There is the suggestion in Dr. Rubens’ memos to Maritime Life that he was not suffering from a psychiatric illness, however, that does not seem to be the thrust of the position taken by Maritime Life. Instead, it was that he could do other work and that was why they terminated him at the 30 month stage.
[65] Another issue raised in the material is the fact that throughout the Maritime Life file there is a suggestion that Mr. Wright was not getting adequate medical attention for his psychological problems. However, it is clear under the Plan that he could have been referred for rehabilitation for his emotional problems if it was felt he could benefit from a different type of treatment.
[66] The Court heard evidence from Frances Patrick Bryce, the current Director of the LTD program. He explained how the claims system worked and how the appeal hearings were conducted. He testified that about 55 percent of appeals to the Medical Appeal Board are successful.
[67] He also pointed out that the rehabilitation which is offered to claimants under the Plan is made available in an attempt to get them off the long-term disability benefits. In other words, a cost benefit analysis is made and if rehabilitation of a claimant is less expensive than paying for the disability benefits rehabilitation may be attempted. However, if long- term rehabilitation is needed then the Plan may decide to pay benefits instead of incurring the costs of rehabilitation.
[68] I conclude here that the Medical Appeal Board could not determine Mr. Wright’s entitlement to disability benefits because it did not involve only medical grounds. I conclude that it did not determine that he did not suffer from a psychiatric illness as suggested by counsel for the defendant. The only evidence I have of that is the reference in the decision letter to the fact that Dr. Reid agreed with the Maritime Life opinion that he did not qualify. Maritime Life had indicated in its termination letter to the plaintiff that: [Exhibit 2, Tab 33]
It is our opinion that the medical documentation on file does not support a claim of total disability after the 30 months as described above.
[69] I interpret that to mean that it was only at the 30 month stage that they felt he did not qualify. When Dr. Reid wrote that he agreed with Maritime Life I assume he concluded that the plaintiff could do other work. However, he did not address the issue of what other work the plaintiff could do and whether it would earn him 80% of his current salary.
[70] The defendant raised the issue of res judicata. Counsel for the defendant submitted that to determine that I would have to find that the medical appeal decision was or involved a determination of the same question as that sought to be considered in this litigation.
[71] Based on my finding about the issue that should have been before the Appeal Board, that is, whether Mr. Wright could handle a job which would earn him at least 80% of his salary and my finding that the Medical Appeal Board could not decide that issue with the material before it, I reject the argument based on res judicata because it is clear that issue was not addressed by the Medical Appeal Board.
[72] I would find further that even if it did apply considering the importance of the issues to the plaintiff and the informal procedure used at the appeal hearing along with the lack of reasons given, I would exercise my discretion and not apply that defence. [See Danyluk v. Ainsworthy Technologies Inc., [2001] 2 S.C.R. 460.]
Issue Two - Is Mr. Wright disabled?
[73] On the issue of whether the plaintiff is in fact disabled, the Court has had an opportunity to hear from him about his problems since 1995 when he left his job. I have also heard from his former wife and his daughter. Janesta Wright married the plaintiff in 1970 and lived with him until October, 2001 when they separated. They were divorced in 2003.
[74] She told the Court about how the plaintiff changed in the late eighties and early nineties when his workload increased at the Department of Community Services. She said he would come home late from work and leave early in the morning. She said he was not eating and would just sit in this chair thinking about his job. He was not taking part in family visits and stopped going out to do things with his friends.
[75] She said he got to the point that he would look at her as if he was looking through her. He would not talk and his short-term memory became very poor. She said he would forget the people’s names and phone numbers, even his parent’s phone number.
[76] She said his movements were very slow in things like getting dress and shaving. She said that prior to these developments he was social, active and well-kept and “always on the ball”.
[77] She said that after he stopped work in 1995 he just stayed at home. She said he did talk about going back to a different job. She said that after he was cutoff benefits he had problems paying for his medication because his drug plan at work also terminated.
[78] She said that if he started to do something he would only stay at it for a short period of time and then stop. She said he used to read a lot and help around the house. He stopped doing both. She said that sometimes he would say things, while talking to friends, that were completely out of context. She said it embarrassed her. She said he would forget the rules of a card game that he had played for years.
[79] She said that if any pressure was put on him he would get worst. She said that when their daughter got married in 1999, the plaintiff could not remember the names of people to invite to the wedding and could not help with the plans for the wedding.
[80] She said she attended the Medical Appeal hearing in Halifax with the plaintiff. She said he was very anxious about the appeal and was not eating or sleeping prior to it.
[81] She said that after he was cut-off benefits the family lost their home which had been in her family for many years. She said that she could not communicate with him and she separated from him. He went to live with their daughter in Dartmouth.
[82] Sherry Wright testified. She is the daughter of the plaintiff. The plaintiff now lives with her and her son who is 12 years old and her boyfriend in a rental apartment in Petit d’Grat in Richmond County.
[83] She said that in 1995 when her father stopped work she was 15 years old. She said that prior to stopping work her father used to leave home early in the morning and come home late at night. She said that when he stopped work that she understood that it was to take some time off.
[84] She said that after her parents separated in 2001 the plaintiff move to Dartmouth to live with her. They were there until late 2002 when they moved back to Richmond County.
[85] She said that she felt her father was severely depressed. She said that he sits in his chair a lot and that his mind is wondering.
[86] She said that he has been worst for the last number of months because of the strain of the court action. She said he now has a bad back which restricts his movement.
[87] She said that the plaintiff had lost a lot of weight and that he is “staring into space half of the time”. She said that she felt that his heavy workload brought on his depression but that it was not the only reason for his depression. She said she felt that he could not live on his own.
[88] The Court has before it, by way of an agreement between counsel, a number of medical reports from the two different psychiatrists. Dr. Paul Sheard started treating the plaintiff in May 1995 on referral from his family doctor. He has continued to treat the plaintiff up to the present time.
[89] Dr. Mark Rubens was advising Maritime Life on medical issues and in June 1997 he was asked by Maritime Life to review the medical information provided by Dr. Sheard. Dr. Rubens responded to the request on June 25th, 1997, [Exhibit 2, Tab 32] and later in September 1997, when asked to review a new report from Dr. Sheard which had been filed after the plaintiff filed his appeal from the decision to terminate benefits [Exhibit 2, Tab 42] and later in November 1997 [Exhibit 2, Tab 50].
[90] Finally as a result of the action, Dr. Rubens was asked by counsel for the defendant to do an assessment of the plaintiff in October 2004. That was done and he filed a report dated February 10th, 2005 [Exhibit 3] and a subsequent report dated April 1st, 2005 [Exhibit 5].
[91] From my review of the medical reports it is clear that there is a major difference of opinion between Dr. Sheard and Dr. Rubens about the plaintiff’s condition and how he should be treated.
[92] Dr. Sheard diagnosed the plaintiff in the Spring of 1995 with a primary diagnosis of major depression. In December 1995, he wrote to Maritime Life:
His prevailing mood is one of depression and heightened anxiety with no panic attacks. He has some ideas of self doubt and unworthiness over his inability to return to the work force and to completely come out of his depressed state. He does have some impairment in attention span and short term memory. Currently, he is receiving 200 mg a day of Serzone and is avoiding any relapse in his sobriety. He was initially treated with Prozac. This had to be switched on account of intolerance of side effects to Serzone. Even though initially he felt the Serzone was giving him some over sedation. On balance between the Prozac group and Serzone, this appears to be the more suitable drug. He is able to lead a marginal domestic existence with the occasional bit of hunting. I would anticipate that he still needs at least a solid year without being able to work at any form of employment. It is most likely that he will return to his former job as this has not been made less stressful by the appointment of additional staff or by the alteration of the onerous duties. Therefore, it is premature to consider involvement in a rehabilitation program. I would hope that when the right job comes along in a year, Mr. Wright will be able to embrace it with enthusiasm and better mental health.
[93] In August 1996, Dr. Sheard wrote again to Maritime Life [Exhibit 2, Tab 14].
With reference to you (sic) request on the 7th of August for information about Bruce Wright, he most recently attend on the 22nd of August. Currently, he is taking Serzone between 200 and 300 mg day. This medication is assisting his depressive symptoms. He has much more appropriate initiation and maintenance of sleep, more appropriate interest in self care, personal hygiene. His concentration and short term memory have improved also. He is now able to energetically complete tasks around the house. Within a three month time frame, he could be considered now to be fit for a return for what might be termed suitable employment. His previous job description was and is so stressful that there is no possible way that he will ever be able to return to it and stay in remission from both his depressive symptoms and his alcoholism. The post has had three individuals go through it and burn out from stress since Bruce went on disability. This indicates the extremely stressful nature of the job. A civil service job with the gaming commission would be an example of an alternative occupation within the provincial sphere which Bruce would be able to handle. The problem at the moment seems to centre around the union’s reluctance to allow lateral transfer from one commission to another. This is despite the fact that Bruce has an enormous chunk of seniority within the provincial civil service. Therefore, I suppose what I am saying is that a return to his own occupation is not possible at this time; nor, will it be possible in three months. In three months, a return to an alternative occupation, if offered, may well be feasible.
[94] In June 1997, he wrote to Maritime Life [Exhibit 2, Tab 28].
His most recent mental state was that of an alert, coherent, punctual, well dressed individual exhibiting good eye contact, obvious depressed expression with some evidence of psychomotor retardation, some impairment of attention span and short term memory, ideas of guilt, self doubt, unworthiness, a certain resignation over the future; but, no suicidal ideation. His alcohol misuse is not an issue at the present time. He has maintained sobriety for a number of months. His wife as started to get after him for being too much of a couch potato through the winter months. Apparently, she has started babysitting two of their grandchildren; and, Bruce tends not to get out of the chair to run after them until prompted by his wife. The question 4: there are no additional psychosocial stresses which might be effecting progress. The main problem is really that the provincial government do not have an alternative civil service job description which he might be able to slip into without getting rapidly burnt out and manifesting a loss of sobriety and a relapse in his depressive symptoms. It is still my conviction that he can never return to his former job. It is instructive to note that several individuals attempting to cope with his job have gone off on stress leave since Bruce went off. The job is obviously far to great for one person to handle. I was hoping that an opportunity in the gaming commission division might have arisen which Bruce could have handled; at the moment, there is no such opening. Therefore, I would say on balance that he is still indefinitely disabled.
[95] In July 1997, the plaintiff was advised that his disability benefits would be terminated effective December 10th, 1997. He appealed that decision and Dr. Sheard wrote a letter dated August 31st, 1997 to support his appeal. He said: [Exhibit 2, Tab 40]
His cognitive difficulties preclude working at any employment, in my view, because anything that involved remembering instructions, simply arithmetic, tactful contact with the public would be completely compromised by his current mental state. However, I would be hopeful that with a fresh medication approach over the next few months and ultimately a cognitive therapy approach once his depression recovers sufficiently; we might see some clinical improvement to allow more appropriate domestic functioning and recreational activities. If this state of improvement was maintained for at least a three month period of euthymia, I would anticipate a raising of the GAF score to between 70 and 80. I would see this as possibly occurring in a time frame of 8 to 24 months. Therefore, I would urge you to reconsider your intent to terminate benefits as I do regard him as being unable to work beyond the end of this year at any and every occupation. We will work very closely to promote rehabilitation. I very much hope that this information is sufficient and helpful to you in your deliberations.
[96] He followed that up with a letter dated October 30th, 1997. He said: [Exhibit 2, Tab 47]
It is still my believe (sic) that owing to the altered attention span and cognitive difficulties with these symptoms, Mr. Wright would be unable to concentrate effectively in any occupation even after your date of change in disability definition. I would urge you to reconsider your decision to terminate his claim
[97] In June 2002, Dr. Sheard wrote to the plaintiff’s counsel. [Exhibit 1, Tab 1, page 40]
I have known Mr. Wright since 1995. I have met with him on numerous occasions since 1998 when his disability was withdrawn. I continue to have the same opinion that his condition is resistant to treatment. He can lead a marginal existence coping with light domestic and recreational opportunities on between 300 and 400 mg of Serzone; but, it is my opinion that he would rapidly lapse in terms of his alcohol abstinence were he to be back in an employment setting. Also, he would be at significant risk of depressive decompensation. My opinion on his inability to work on medical grounds, of course, extends back to December 1998 and the whole time between then and now.
[98] He followed that up in March 2005 and responded to Dr. Rubens assessment report done in February 2005. [Exhibit 1, Tab 1, page 41]
With reference to your recent communication with enclosures, I have had an opportunity to read Dr. Mark Rubens’ report. The report is carefully written, comprehensive and scholarly.
However, I would beg to differ in many of the criticisms and conclusions. First of all, I would respectfully point out that in terms of the number of hours over time going back for a number of years spent with the patient, I have spent considerably more time observing Mr. Wright, therefore, I believe that I am in a better position to judge his clinical condition. I accept that there is a considerable overlap between the symptoms of major depression severe and job burn out; however, I do not accept Dr. Rubens’ argument that major depression severe necessarily lands a patient in the hospital. Many of my patients are treated quite competently in an out-patient setting. Mr. Wright has had problems in his local community accessing affordable medical care even basic transportation requires expenditure on gas; this has precluded more intensive meetings with myself, it has precluded specific AA meeting attendance with help for alcohol. At times, his use of medication by provision of samples has resulted in clinical improvement only for Mr. Wright to be burdened with a deterioration when the medication cannot be afforded or the supply of samples run out. This goes right back to the termination of his drug coverage which was tied in with his initial disability provision.
I steadfastly maintain, as per my previous letters, that my original diagnosis is quite correct. I remain of the opinion that Mr. Wright would decompensate rapidly from his borderline remission of symptoms in most employment settings if not all; therefore, this lies behind the view that he is permanently disabled. In no way am I modifying any of my original opinions on the basis of Dr. Rubens’ report. Finally, I would add that whilst the length of my documentation may be considerably shorter than Dr. Rubens’, I believe, what matters is the number of times over a period of years that I have personally met with the patient. When a psychiatrist makes a particular diagnosis, even if all of the symptoms are not recorded in the chart in extreme detail, the diagnosis includes a number of symptom complexes which fit a particular patient. This is in keeping with the difference between a busy office with over 800 out-patients and an office structure for detailed medical/legal insurance assessments.
[99] Dr. Mark Rubens first commented on the plaintiff’s medical condition in June 1997 after being asked by Maritime Life to review their file. He said [Exhibit 2, Tab 32]
This claim has been highly suspect from the start. Obviously, this man had a difficult and demanding job. In this context, he was consuming a large amount of alcohol, and was put off work. For reasons which are not explained at all in Dr. Sheard’s correspondence, he was treated with an antidepressant. According to Dr. Sheard, he also stopped consuming alcohol.
Dr. Sheard at no point gives any clear diagnosis. Nor does he describe any significant symptoms. In fact, at the time of Dr. Sheard’s initial assessment, when he stated very strongly that this claimant should be off work, he described the claimant as “mildly depressed and anxious”. This description could apply to a substantial proportion of the world’s population.
The specific issue here seems to be an occupational one – this claimant felt incapable of performing the work required of him at his previous job. Possibly this job was in fact unreasonably demanding, but this is somewhat beside the point. In any case, as we discussed, this has now become, or is soon due to become an “any occupational” claim, and the specific circumstances of the claimant’s previous job are therefore irrelevant at this point.
Dr. Sheard’s most recent letter dated June 19, 1997. Observation twice a year by a psychiatrist with a discussion of recent activities and “encouragement to pursue recreational activities” hardly constitutes psychiatric treatment. It is apparent that he has been pursuing a highly dysfunctional lifestyle, which would explain some of the symptoms observed by Dr. Sheard. Most importantly, however, Dr. Sheard very directly states that the problem remains with the specifics of his previous job, and that he would be fit to begin working at an alternative, more suitable, or more desirable job if one were available. In other words, this underscores even more clearly that this is an occupational problem, not a psychiatric one. It is most regrettable that this claim was not reviewed before, as I am quite sure I would strongly have had this opinion in 1995, as I most definitely do at present. My advice at this point would be that this claim be denied on the grounds of no evidence of a disabling psychiatric condition, and the issue of whether a suitable or desirable job can be found for this claimant is not relevant. This will undoubtedly be appealed. If so, please let me see any additional data, and we can discuss further procedures.
[100] Later in September 1997 he wrote:
My advice remains that this claim should be denied on the grounds both that there is insufficient evidence of disabling psychiatric condition (in spite of Dr. Sheard’s recent letter), or on the grounds that if a disabling psychiatric condition has been present during the time the claimant has been off work insufficient treatment has been provided during this time period.
[101] Finally, in November 1996 [Exhibit 2, Tab 50] where Dr. Rubens advised Maritime Life:
Please refer to my comment of September 17, 1997. I have some thoughts on how this file should be handled, but I think that the best step to take right now might be for us to have a meeting with Pam to discuss this, and perhaps other files, involving this psychiatrist. This situation is really becoming quite intolerable and has to be discussed in more detail. I would be pleased to attend a meeting of this kind on any Wednesday. Please arrange as you see fit.
[102] Dr. Rubens prepared a report for this Court action which is Exhibit 3. That report was based on an assessment done by him in October 2004. The report is 38 pages long and details a lot of the background treatment received by the plaintiff from Dr. Sheard. In his comments on Dr. Sheard’s file he regularly criticizes Dr. Sheard for not justifying his diagnosis of the plaintiff. He noted in his prognosis as follows: [Exhibit 3, page 36]
If resumption of work is planned for this patient, this should be preceded by specific counselling (for example with a rehabilitation specialist and/or an Occupational Therapist) aimed at assisting the patient to reasonably identify his limits in a future work situation (rather than take on whatever is asked of him, as he seems to have done in the years before he stopped working in 1995). Obviously, as well, given the very prolonged period of time that this patient has been absent from the work force, retraining and resumption of occupational activities should be accomplished in a systematic, stepwise, strongly supported and gradual fashion.
[103] His summary of the plaintiff’s condition is as follows: [Exhibit 3, page 38]
The 55-year-old man has remained off work for a very prolonged period of time for reasons related to strictly occupational problems and prolonged, heavy alcohol abuse, resulting in emotional and physical deterioration prior to cessation of work in 1995. There is no documentation at all, and no indication from the information I elicited from this patient, indicating that his absence from work in 1995 or since then has been related to a diagnosed or diagnosable, primary psychiatric illness of incapacitating severity. There are no psychiatric barriers at this point to the patient adopting a less “disabled” pattern of living and directing his activities and energies towards returning to regular occupational activities. There is also no evidence at all that this patient is prevented from re-training or working as the result of any form cognitive impairment (concentration, memory). There are, however, significant practical (non-medical) barriers to the assumption of this strategy at present. The patient might be maintained on an anti-depressant medication for non-specific symptom relief. No other medication treatments are indicated at this point. Structured rehabilitation with clearly defined goals would be of more benefit to the patient at this point than any form of formal psychiatric treatment as such. The patient should be referred for individual and/or group counselling in connection with this longstanding problem with alcohol addiction.
[104] I conclude based on the differing medical opinions and the evidence that I have heard in this trial that the plaintiff is suffering from depression. I reject Dr. Rubens’ suggestion that his problem was mainly associated with alcohol abuse and an occupational problem. It is clear to me that the plaintiff was facing a major crisis in early 1995 when he went off work. That was clearly caused by his increased workload. It is clear that prior to the onset of his new work obligations he was handling his work and family situation appropriately. In fact he appears to have been happy and very much involved with his community and his family. He had outside interests and the time to be involved with them. That all stopped when he found that to handle his job duties he did not have time to do anything but sit and watch T.V. He worried constantly about his clients whom he could not help because the resources were not in place to accommodate their needs. To suggest, as Dr. Rubens has suggested, that he simply needed a bit of time to get over it is not to accept the reality that his only option was to either stay home or go back to his old job. The evidence is that he discussed with his supervisor the possibility of a change of his duties, but was advised that there would be no change. The only place he could turn was to his family doctor who very quickly diagnosed his situation and advised him to not continue to work under the conditions which he faced.
[105] Dr. Rubens has apparently accepted the fact that as of October 2004, the plaintiff needs assistance before he can return to work. Certainly from the evidence I have heard in this trial he would have to come a long way from where he is at present before he could handle any kind of job responsibilities let alone a job that would guarantee 80% of what he was making with the Department of Community Services. His income at Community Services was $35,000.00 per year, therefore, a new job position should earn him $28,000.00 before he should be denied disability benefits.
[106] The picture I have of the plaintiff is a person who for whatever reason is emotionally a basket case. He can hardly care for his own personal needs let alone a full time job. He cannot remember the rules of card games he has played for years. He does not communicate and he cannot concentrate. He is on medication for depression. I do not know of too many employers who would be prepared to take him on as an employee considering his emotional state at present. He presently receives Canada Pension Disability Benefits based on his depression.
[107] I accept to some extent Dr. Rubens criticism that maybe the plaintiff should have been more aggressively treated. Maybe Dr. Sheard’s treatment was not the best. I note, however, that Dr. Rubens did not recommend addiction treatment for the plaintiff back in 1997, but simply that the plaintiff’s benefits should be terminated.
[108] I detect that Dr. Rubens criticism is more with Dr. Sheard than with the plaintiff. The plaintiff had a family doctor. He was referred by that doctor to Dr. Sheard for psychiatric treatment. He was placed on anti-depressant medication. If the treatment he received was not adequate it certainly was not his fault. There is no evidence that he at any time refused to do anything that he was asked to do by medical personnel. The fact that he had a drinking problem was, I believe, part of his overall emotional state which should have been dealt with the same way as any other emotional problem. It is not clear why he was drinking but it likely was because of his job and family situation. It appears from the records that he dealt, to some extent, with his drinking and discussed it with his doctor.
[109] I conclude that Dr. Sheard’s opinion of the plaintiff is the preferred one. He was, I believe, in a much better position to give an informed opinion about the plaintiff’s psychiatric condition. I accept his opinion that the plaintiff was since the spring of 1995 was suffering from depression which caused him to be unable to do his job. I conclude further that based on what has happened since 1997 when his benefits were terminated that he has not improved but has, in fact, become worst. His family has broken up and he sits at home.
[110] He is not able to work at any job and clearly not a job which would earn him $28,000.00 per year.
[111] I find that the plaintiff has proven entitlement to benefits since his termination date of December 10th, 1997 and I order that the defendant pay the back benefits to him with appropriate interest.
[112] I understand that counsel will agree on the amounts involved. If there is no agreement the parties can arrange to appear before me again so I can rule on the issue. The plaintiff’s continuing entitlement is always an issue and therefore once he is paid up to date he will have to continue to provide information to support his claim for benefits. He may also be asked by the defendants to become involved in rehabilitation efforts to see if he can get back into the workforce.
[113] I award costs to the plaintiff and will hear counsel if the amount cannot be agreed upon.
J.