Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

[2] The Appellant, W. P., isn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant is 55 years old. She last worked as a vegetable grader. She stopped working in February 2019 because of advanced osteoarthritis in both knees.

[4] The Appellant applied for a CPP disability pension on April 8, 2020. The Minister of Employment and Social Development (Minister) refused her application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Appellant says that her osteoarthritis results in many functional limitations that keep her from being able to do any work.

[6] The Minister acknowledges that the Appellant has functional limitations from osteoarthritis. However, the Minister argues that the Appellant should have tried other work. The Minister also says that the Appellant’s disability isn’t prolonged because she has been referred for two knee replacements.

[7] I agree with the Appellant that her disability is severe. However, I also agree with the Minister that the Appellant’s disability isn’t prolonged. A claimant must have a disability that is both severe and prolonged in order to receive a CPP disability pension. Because the Appellant’s disability isn’t prolonged, she isn’t eligible to receive a CPP disability pension.

What the Appellant must prove

[8] For the Appellant to succeed, she must prove she has a disability that was severe and prolonged by December 31, 2020. This date is based on her contributions to the CPP.^{Footnote 1}

[9] The Canada Pension Plan defines “severe” and “prolonged.”

[10] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[11] This means I have to look at all of the Appellant’s medical conditions together to see what effect they have on her ability to work. I also have to look at her background (including her age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether her disability is severe. If the Appellant is able to regularly do some kind of work that she could earn a living from, then she isn’t entitled to a disability pension.

[12] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 3}

[13] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep the Appellant out of the workforce for a long time.

[14] The Appellant must prove that she has a severe and prolonged disability. She must prove this on a balance of probabilities. This means she must show that it is more likely than not she is disabled.

Reasons for my decision

[15] I find that the Appellant hasn’t proven she had a severe and prolonged disability by December 31, 2020.

Was the Appellant’s disability severe?

[16] The Appellant’s disability was severe by December 31, 2020. I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations affected her ability to work

[17] The Appellant has advanced osteoarthritis in both knees. However, I can’t focus on the Appellant’s diagnosis.^{Footnote 4} Instead, I must focus on whether she has functional limitations that got in the way of her earning a living by December 31, 2020.^{Footnote 5} When I do this, I must look at all of the Appellant’s medical conditions (not just the main one) and think about how they affected her ability to work.^{Footnote 6}

[18] I find that the Appellant had functional limitations by December 31, 2020.

What the Appellant says about her functional limitations

[19] The Appellant says that her medical condition has resulted in functional limitations that affected her ability to work by December 31, 2020. She says that she has knee pain all the time, whether she sits or stands. The pain is the same every day. She says that she can’t walk for more than 20 minutes and she does minimal housework. Stairs are especially hard.^{Footnote 7}

[20] The Appellant’s job as a vegetable grader required her to stand almost all day, from 8:00 AM to 5:00 or 6:00 PM. She was only allowed to sit down sometimes, which was still painful. She testified that she could no longer work by September 2018, but she persevered until February 2019 because of financial need.^{Footnote 8}

[21] The Appellant also reported losing her vision in August 2020. This was related to a diabetic flare-up. At the hearing, she said that her vision is fine now. In addition, she was diagnosed with diabetes and asthma. She testified that she uses insulin to manage her diabetes, and has an inhaler (or puffer) for asthma.^{Footnote 9} She didn’t describe any functional limitations from these conditions.

What the medical evidence says about the Appellant’s functional limitations

[22] The Appellant must provide medical evidence that shows that her functional limitations affected her ability to work by December 31, 2020.^{Footnote 10}

[23] The medical evidence supports what the Appellant says. X-rays show that the Appellant had moderate-to-severe osteoarthritis in both knees by September 2019. An x-ray in November 2020 showed that the osteoarthritis was advanced.^{Footnote 11}

[24] Dr. Matthew Katz said that the Appellant had been in constant pain due to osteoarthritis since 2017. He reported that:

• she had pain with movement, kneeling, and using stairs
• her range of motion was restricted
• she had trouble walking, standing, and sitting for long periods of time^{Footnote 12}

[25] Dr. Jason Crosby reported that the Appellant:

• had trouble with stairs
• had to take breaks when doing daily activities
• could only walk a couple blocks at a time^{Footnote 13}

[26] The medical evidence supports that the Appellant’s inability to stand or sit for long without significant pain kept her from doing her job by December 31, 2020. She had to stand (with brief breaks to sit down) for eight or more hours as a vegetable grader. Because of her functional limitations, she could not do her job by December 31, 2020.

[27] Next, I will look at whether the Appellant followed medical advice.

The Appellant has followed medical advice

[28] To receive a disability pension, a claimant must follow medical advice.^{Footnote 14} If a claimant doesn’t follow medical advice, then they must have a reasonable explanation for not doing so. I must also consider what effect, if any, the medical advice might have had on the claimant’s disability.^{Footnote 15}

[29] The Appellant has followed medical advice.^{Footnote 16} She is waiting for two knee replacements. In the meantime, she has tried topical creams, Tylenol 3, and herbal medicines for pain relief.^{Footnote 17} She is not taking any other pain medications, but there is no indication that any were recommended to her, despite her significant pain. In other words, she didn’t refuse to take medications.

[30] The Appellant got knee braces, which don’t help with her pain.^{Footnote 18} She used to get cortisone shots, but she can’t get them anymore because they cause her blood-sugar levels to spike, which is bad for her diabetes.^{Footnote 19} She had a viscosupplement injection (to lubricate her knee joints).^{Footnote 20} She testified that the injections cost $500 and she can’t afford to keep getting them. The Appellant’s decision is reasonable. The affordability of a medical treatment is a relevant consideration for someone in the Appellant’s financial situation.

[31] I now have to decide whether the Appellant can regularly do other types of work. To be severe, the Appellant’s functional limitations must prevent her from earning a living at any type of work, not just her usual job.^{Footnote 21}

The Appellant can’t work in the real world

[32] When I am deciding whether the Appellant can work, I can’t just look at her medical conditions and how they affect what she can do. I must also consider factors such as her:

• age
• level of education
• language abilities
• past work and life experience

[33] These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that she can work.^{Footnote 22}

[34] I find that the Appellant can’t work in the real world. She was 54 years old as of December 31, 2020. She didn’t graduate from high school and has had no formal education since then. She doesn’t own a computer and only uses them for Internet browsing. She described her ability to read and write English as “good.”^{Footnote 23}

[35] The Appellant’s work history has mainly involved cooking and serving food. She cooked at a bar (from 2000 to 2004), a golf course (in 2005), a motor inn (in 2006), a diner (in 2008), a restaurant (from about 2008 until 2010), and another restaurant (until 2012). She was a banquet server from April 2012 to September 2013. In 2007, she worked as a cashier at a department store, until the store closed.^{Footnote 24}

[36] The Appellant is no longer suited to cooking or serving food, or to being a cashier. These jobs would require her to be on her feet often, which she can’t do.

[37] Given the Appellant’s functional limitations, it isn’t clear what work she would have been able to do as of December 31, 2020. By then, she could not sit, stand, or walk for long periods of time without a lot of pain. The pain was constant, and still is.

[38] Even if there were some other job she could do, they would likely require retraining. The Appellant’s lack of education and minimal computer skills would make this very challenging. Once trained, she would still have to find a job. Her age and lack of work experience in a new field or occupation make it unlikely that an employer would hire her.

[39] I find that the Appellant’s disability was severe by December 31, 2020. She was unable to work in the real world by then. This means I don’t have to consider the Minister’s argument that the Appellant didn’t try to find another job.^{Footnote 25}

Was the Appellant’s disability prolonged?

[40] The Appellant’s disability wasn’t prolonged by December 31, 2020.

[41] To be prolonged, a disability must be likely to be long continued and of indefinite duration, or likely to result in death.^{Footnote 26} The Appellant’s osteoarthritis isn’t likely to result in death. She has had osteoarthritis since 2017, which makes it long continued. However, her disability isn’t likely to be of indefinite duration.

[42] The Appellant has been referred for two knee replacements. The only medical condition she has that results in functional limitations is osteoarthritis in her knees. So it is reasonable to conclude that the surgeries would address those limitations. Knee replacement surgeries are generally known to result in improved pain and functional outcomes. After the Appellant recovers from surgery, it is more likely than not that she would not have a severe disability anymore.

[43] I acknowledge that the surgeries have not yet been scheduled. But in October 2021, the Appellant saw a surgeon for a consultation. The surgeon told her that she could expect a call in late summer or early fall of 2022.^{Footnote 27}

[44] I asked the Appellant if that is when her surgery would be scheduled (that is, when she would be given a date for surgery), or when the surgery would actually happen. She wasn’t sure. However, the Winnipeg Regional Health Authority said that a surgery should be scheduled about eight months after the consultation.^{Footnote 28} So it is likely that she will have one knee replacement this year.

[45] Dr. Crosby previously estimated that the Appellant would be able to have the second knee replaced four months after the first one.^{Footnote 29} Even if it takes longer than four months, this isn’t a case where the possibility of surgery is only theoretical. She had a consultation and the process of scheduling surgeries for her is underway.

[46] I have no medical evidence about the likelihood that the surgeries will go well. At the same time, I have no medical evidence to suggest that they won’t go well, even though it will take the Appellant some time to recover from surgery. The Appellant bears the burden of proof. This means it is her responsibility to prove that her disability is prolonged. It is not for the Minister to prove that her disability is not prolonged.^{Footnote 30}

[47] The Appellant hasn’t proven that her disability was prolonged by December 31, 2020.

[48] I recognize that the Appellant can’t work while she waits for surgeries. However, the purpose of a CPP disability pension is “to provide a pension to those who are disabled from working on a long-term basis, not to tide claimants over a temporary period where a medical condition prevents them from working.”^{Footnote 31}

Conclusion

[49] I find that the Appellant isn’t eligible for a CPP disability pension because her disability wasn’t prolonged by December 31, 2020.

[50] This means the appeal is dismissed.