Other Canada Pension Plan (CPP)

Decision

[1] The appeal is allowed.

[2] The Appellant, R. Y., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of May 2018.

[3] This decision explains why I am allowing the appeal.

Overview

[4] The Appellant was 42 years old in April 2019 when he applied for a CPP disability pension. He worked as a welder/labourer. In October 2017, he received injuries in a fight. He was hit over the head with a pipe and then run over twice by a car.^{Footnote 1} He stated that he had been unable to work since then. He received fractures in his spine, ribs, ankle, and a finger of his right hand. He had also suffered a bruised right lung, pneumonia and a low concentration of oxygen in the blood (hypoxemia). In September 2018, he also fractured his right baby finger.^{Footnote 2}

[5] The Minister of Employment and Social Development (Minister) refused the Appellant’s application initially and on reconsideration. The Appellant appealed the Minister’s reconsideration decision to the Social Security Tribunal’s General Division.

[6] The Minister stated that the Appellant is not entitled to a CPP disability pension. Several health professionals have stated that he has the capacity for alternate work. However, he has failed to try any other job.

What the Appellant must prove

[7] For the Appellant to succeed, he must prove that it is more likely than not that he has a disability that was severe and prolonged by December 31, 2019.^{Footnote 3}

[8] The CPP defines “severe” and “prolonged.”

[9] A disability is severe if it makes an appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 4} If the Appellant is able regularly to do some kind of work that he could earn a living from, then he isn’t entitled to a disability pension.

[10] A disability is prolonged if it is likely to be long continued and of indefinite duration.^{Footnote 5} The disability must be expected to keep the Appellant out of the workforce for a long time.

Issues

[11] Did the Appellant’s health conditions result in his having a severe disability, so that he was incapable regularly of pursuing any substantially gainful occupation by December 31, 2019?

[12] If so, was his disability long continued and of indefinite duration?

The Appellant’s disability was severe by December 31, 2019

[13] It is not the diagnosis of the disease, but the Appellant’s capacity to work, that “determines the severity of the disability under the CPP.”^{Footnote 6}

[14] This means that I must focus on whether the Appellant had functional limitations that got in the way of his earning a living.^{Footnote 7} I have to look at all the Claimant’s medical conditions (not just the main one) and think about how his conditions affected his ability to work.^{Footnote 8}

Accounts by the Appellant and his wife

[15] In his CPP questionnaire of April 2019, the Appellant stated that he had great difficulty kneeling, bending, sitting for 20 minutes, driving a car, pushing, lifting, and staring at a computer screen for 20 minutes. In addition, he had trouble persisting with difficult tasks, adjusting to unexpected changes, dealing with stress, and asking for help from co-workers. Further, he had trouble with memory and concentration.^{Footnote 9}

[16] In November 2019, the Appellant told Dr. Raymond Stein, internal medicine, that his headache pain ranged from 5-8/10, where 10 is the greatest pain imaginable. His back pain was at 5-9/10. He also had sharp pains in his right foot. He had trouble sleeping because of pain.^{Footnote 10}

[17] At the hearing, the Appellant testified that he has pain all over his body. The pain level is 7-9/10, where 10 is the greatest pain imaginable. He is dizzy. He has trouble sleeping and has constant headaches. He has trouble breathing.

[18] The Appellant stated that he used to be able to work 12-hour shifts and drive both ways to work. Since October 2017, however, he has been unable to do much of anything. He couldn’t do any part of a welder’s job. He could not even do the sitting part because he can’t sit for long. He has trouble even doing home exercises. He is also unable to drive because of dizziness. His condition has been getting worse.

[19] The Appellant stated that he has good days about once a month. On a good day, he can put his socks on and can walk upstairs without a break. He is in less pain. On a bad day, he is in terrible pain, is short of breath, can’t sleep, and needs help getting dressed.

[20] Candy Travis (Candy), the Appellant’s wife, testified about his excruciating pain since his accident. She also mentioned his poor sleep, dizziness, and breathing problems. Candy also stated that the Appellant has tried every treatment offered, including medications, physiotherapy, and psychological help. 

[21] Candy stated that because of his functional limitations, the Appellant’s ability to help around the house is limited to simple chores like feeding the dog and making salad. He is not even reliable to walk down the stairs.  Because of his dizziness, he is liable to faint. Candy testified that the Appellant’s condition is getting worse.

The medical evidence supports these accounts

Physical health

[22] In April and October 2019, Dr. Bill Leung, family doctor, stated that in the 2017 incident, the Appellant had suffered a compression fracture of two bones in his mid-spine. He also broke two ribs, and bones in his right hand and right ankle. He also had a head injury. The Appellant still had pain in multiple bones, headaches, and “poor memories.” He suffered from frequent dizzy spells, chronic back pain, and weakness. He was sensitive to light. He was unable to sit or walk for long. He couldn’t drive.^{Footnote 11}

[23] In April 2020, doctors at Viewpoint Medical Assessment Services provided the insurer with a Catastrophic Impairment Assessment Report (April 2020 Report).^{Footnote 12} They found that the Appellant was not catastrophically impaired. For the following reasons, I attach limited weight to their physical assessments.

[24] One reason is that the doctors had to follow somewhat rigid rules. These required, for example, objective radiologic evidence of brain injury. The neuropsychologist found that the Appellant had suffered a mild to moderate traumatic brain injury based on the length of time he’d been unconscious and his post-concussion symptoms. But the neurologist was unable to find that he had a catastrophic impairment because there was no objective radiologic evidence of brain injury.^{Footnote 13}

[25] Further, the doctors were concerned only with injuries the Appellant suffered in the accident. They were not concerned with his health conditions as a whole. For example, Dr. Victor Naumetz, orthopedic surgeon, explained that a 2014 X-ray of the lumbar spine showed that the Appellant had degenerative changes in his lower back before 2017. He therefore assigned no weight to the Appellant’s low back pain, although it was his main physical complaint.^{Footnote 14}

[26] The doctors who contributed to the 2020 Report did substantiate some of the Appellant’s complaints. For example, Dr. Raymond Stein, internal medicine, stated that the Appellant’s shortness of breath was likely the result of early obstructive pulmonary disease (COPD).^{Footnote 15} The Appellant also had benign positional vertigo with dizziness.^{Footnote 16}

[27] There is significant documentation of the Appellant’s functional limitations. In January 2019, Alice Krait, occupational therapist, stated that the Appellant had trouble bending, gripping, and completing fine motor tasks with his right hand. He had decreased strength in his right arm and his legs. He needed supervision to get in and out of the shower. He had “significantly reduced tolerances” for standing, walking, kneeling, and stair climbing. He needed help dressing and bathing.^{Footnote 17}

[28] In November 2019, Robert Bullard, kinesiologist, performed a functional capacity evaluation for the insurer. The Appellant reported low back pain, headache, neck and arm pain, pain in his right hand, and dizziness. The most serious of these was his low back pain. The Appellant had reduced ranges of motion in his trunk because of reported pain. He was able to sit for only about 20 minutes, stand for 15 minutes, and walk slowly for about 120 meters.^{Footnote 18}

Mental health conditions

[29] In August 2018, psychological testing showed that the Appellant suffered from social withdrawal and anger control problems. He showed some psychotic features. He had severe depression and moderate to severe anxiety. He showed all the signs of PTSD. He also received diagnoses of driver anxiety, sleep disorder, and chronic pain.^{Footnote 19}

[30] Dr. Jean St-Cyr is a neuropsychologist. His contribution to the 2020 Report stated that the Appellant’s inability to concentrate amounted to a cognitive impairment. In addition, his performance fluctuated over time, even within the same task. He also suffered from chronic fatigue.^{Footnote 20} He had suspected learning weaknesses based on weak consolidation of school skills. He functioned at a Grade 9-10 level for verbal skills, but only at Grade 6 for math.^{Footnote 21}

[31] Dr. St-Cyr also diagnosed the Appellant’s psychological conditions. He had moderate adjustment disorder with mixed anxiety and depressed mood, becoming chronic; post-traumatic stress disorder, and moderate somatic symptom disorder.^{Footnote 22} Functional limitations arising from the Appellant’s mental health concerns would interfere with his ability to work. These limitations included: anger, irritability, difficulty with interpersonal relations, errors of attention, and difficulty with travel to work.^{Footnote 23}

The Appellant has generally followed medical advice

[32] To receive a disability pension, a person must follow medical advice.^{Footnote 24} If they don’t, then they must have a reasonable explanation for not following the advice. I must also consider what effect, if any, the advice would have had on the person’s disability.^{Footnote 25}  

[33] The Appellant has tried many medications to control his pain and promote sleep. They have had only limited effect. He is now without a family doctor, so he is unable to get Percocet (opioid pain medication). He relies on forms of cannabis oil, but they are not very helpful.^{Footnote 26} He has also tried Cipralex for depression, but it was ineffective.^{Footnote 27}

[34] As stated above, the Appellant received treatment from an occupational therapist. On her advice, he obtained a grab bar for the shower, a shower chair and a recliner.

[35] The Appellant saw a psychotherapist, Julie Christiansen, from September 2018 to April 2019, when his insurance funding for this treatment ran out.^{Footnote 28}

[36] From January to September 2019, Derek Long, a rehabilitations support worker, took the Appellant out in the community. He went to mini golf, darts, and pool.^{Footnote 29}

[37] From December 2017 to early 2020, the Appellant had physiotherapy on his lower back and elsewhere 3 times a week.^{Footnote 30} In 2019, he was receiving nerve block injections at a pain clinic that provided 2 to 3 days of relief from pain.^{Footnote 31}

[38] I find that the Appellant has followed medical advice.

The Appellant cannot realistically earn a living because of his disability

[39] In deciding whether the Appellant’s condition was severe, I must take a “real world” approach. This means I must consider factors such as his age, level of education, language abilities, and past work and life experience.^{Footnote 32} I must think about how these matters realistically affected the Appellant’s ability to earn a living.

[40] Where there is evidence of work capacity, an appellant must provide evidence of employment efforts and possibilities.^{Footnote 33} He must also show that efforts at obtaining and maintaining employment have been unsuccessful because of his health condition.^{Footnote 34}

[41] The Appellant stated that if he could find any work that he could do, he would do it. However, he would be an unreliable employee. His dizziness alone would make him a safety threat to co-workers and to other drivers on the road.

[42] Candy testified that the Appellant has worked since grade school. He is frustrated and angry that he’s unable to work now. 

[43] The medical evidence shows that the Appellant is unable to do his regular job. In November 2017, Dr. Leung recommended that he stop working. In April 2019, Dr. Leung stated that the Appellant was still unable to do heavy work or prolonged walking.^{Footnote 35}

[44] In September 2019, Dr. Leung stated that the Appellant’s old work involved heavy lifting and lots of driving. He was unable to work any longer. Dizzy spells prevented him from driving. Light bothered him a lot and head movements caused dizziness. He was still taking Percocet. He could not drive, or sit or walk too long.^{Footnote 36}

[45] In April 2020, Dr. Paul Ranalli, neurologist, informed the insurer that the Appellant’s vertigo would disable him from potentially dangerous work, such as a factory job, heavy equipment operation, or working at heights.^{Footnote 37}

[46] The evidence also shows that the Appellant was unable to retrain for other work. Dr. St-Cyr stated that he would have difficulty recalling detailed information. He would not be able to focus to learn. His “poor task monitoring” would lead to errors that could have significant safety consequences.^{Footnote 38}

[47] The Appellant’s experience trying to retrain for other work – as a welding inspector – bore out this assessment. In December 2018, when he was studying for his welding inspector’s exam, the Appellant could only study for 45 minutes at a time.^{Footnote 39} He was unable to pass the exam.^{Footnote 40} He testified that this was because he had trouble concentrating and remembering.

[48] In October 2019, Sandra Cauchard, vocational rehabilitation specialist, stated that the Appellant would benefit from some upgrading followed by help with a job search. She listed alternate jobs that she thought were consistent with his education, training, experience, and transferable skills. However, I give little weight to her opinion. She stated that she deferred consideration of his “physical, functional, and psychological capabilities” to the appropriate assessors.^{Footnote 41} In other words, Ms. Cauchard’s assessment failed to consider the Appellant’s physical and psychological limitations.

[49] In November 2019, Mr. Bullard listed several job possibilities, but he did not clearly identify any of them as suitable for the Appellant.^{Footnote 42}

[50] The Appellant was 43 years old at his MQP. This is many years before the usual retirement age. His age would not restrict his employment prospects. I find, however, that it is more likely than not that he was unable to earn a living at any occupation by December 31, 2019. Because of his physical limitations, he was unable to work at his former job. He tried to retrain as a welding inspector. However, he was unable to pass the exam because of difficulties with concentration and focus. His difficulty with sitting, standing, and walking greatly limited his job prospects. So did his inability to concentrate and learn new information, as well as his mental health problems.

[51] I find that it is more likely than not that the Appellant’s disability was severe by December 31, 2019.

The Appellant’s disability was prolonged

[52] The medical evidence shows that the Appellant has suffered from physical and psychological issues since at least 2014. He had an imaging report for back pain in 2014 and saw a psychiatrist in 2016.^{Footnote 43}

[53] His symptoms are worsening and will more than likely continue indefinitely.^{Footnote 44}

[54] The Appellant’s disability is long continued and of indefinite duration.

[55] I therefore find that his disability was prolonged.

When payments start

[56] The Appellant had a severe and prolonged disability in October 2017, when he stopped working.

[57] However, the CPP says an appellant can’t be considered disabled more than 15 months before the Minister receives their disability pension application. After that, there is a four-month waiting period before payments start.^{Footnote 45}

[58] The Minister received the Appellant’s application in April 2019. That means that he is considered to have become disabled in January 2018. Payments begin as of May 2018.

Conclusion

[59] I find that the Appellant is eligible for a CPP disability pension because his disability is severe and prolonged.

[60] This means the appeal is allowed.