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Persons in attendance
G.D., the Appellant;
P.G., the Appellant's representative.
Also present were Lucie Leduc and Joanne Sajtos, both Members of the Social Security Tribunal, who observed the hearing for training purposes.
Decision
[1] The Tribunal finds that a Canada Pension Plan (CPP) disability pension is payable to the Appellant.
Introduction
[2] The Appellant's application for a CPP disability pension was date stamped by the Respondent on April 3, 2012. The Respondent denied the application at the initial and reconsideration levels and the Appellant appealed to the Office of the Commissioner of Review Tribunals (OCRT).
[3] The hearing of this appeal was by videoconference for the reasons given in the Notice of Hearing dated January 8, 2014.
The law
[4] Section 257 of the Jobs, Growth and Long-term Prosperity Act of 2012 states that appeals filed with the OCRT before April 1, 2013 and not heard by the OCRT are deemed to have been filed with the General Division of the Social Security Tribunal.
[5] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must:
- (a) Be under 65 years of age;
- (b) Not be in receipt of the CPP retirement pension;
- (c) Be disabled; and
- (d) Have made valid contributions to the CPP for not less than the Minimum Qualifying Period (MQP).
[6] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP.
[7] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.
Issue
[8] The parties agree and the Tribunal finds that the MQP is December 31, 2013. In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before December 31, 2013.
Evidence
Documents
[9] In his Questionnaire for CPP Disability Benefits dated March 1, 2012 (p. 92), the Appellant disclosed that he stopped working following a workplace accident in which he backed up a truck into a loading dock with considerable force. As a result, he has severe and ongoing back pain radiating down his left leg to his foot, leaving him unable to sit or stand for prolonged periods. His medications included Lenoltec and Tylenol #3 (both narcotic pain relievers), Naproxen, (an anti-inflammatory pain reliever), Metformin (for high blood sugar) and Myoflex (an over-the-counter topical analgesic).
[10] The Appellant was born in 1956 and attended school up to the equivalent of Grade 10 in India, his country of origin. After immigrating to Canada, he worked as a truck driver, most recently for Central Transport Canada of Milton, where was employed for four years until June 28, 2011, the date of his injury.
[11] In the CPP Disability Medical Report dated March 29, 2012 (p. 49), B. Nanar, the Appellant's family physician, wrote that a work injury to Mr. Deol's left buttocks left him with persistent pain on his left side, rendering him unable to sit or stand for prolonged periods of time. Dr. Nanar confirmed diagnoses of diabetes and degenerative disc disease of the lumbar spine and concluded the prognosis for recovery was poor.
[12] A CT scan of the lumbar spine dated August 5, 2011 (p. 53) indicated multilevel changes, notably moderate narrowing at L3-L4 of the central canal, lateral recesses and nerve root foramina bilaterally, and moderate to severe stenosis at L4-L5 of both nerve root foramina. There was bilateral spondylolysis at L5-S1, with grade 1 anterolisthesis of the L5 vertebral body, and moderate to severe narrowing of both nerve root foramina.
[13] In a consultation report dated January 16, 2012 (p. 45), Eric Marmor, a neurologist, relayed the Appellant's complaints of ongoing lower back pain radiating down his left leg into his foot. He reported discomfort with sitting, standing and walking. Dr. Marmor noted that the Appellant's neurologic examination was unremarkable and ordered an MRI. He recommended walking, aqua fitness and possibly physiotherapy.
[14] In a letter dated February 22, 2012 (p. 47), Dr. Marmor wrote that there had been no significant change since the last consultation. The MRI showed some diffuse degenerative changes but no pressure on thecal sac or exiting nerve roots. Dr. Marmor concluded that surgical intervention was unlikely to help the Appellant, noting that it was not realistic for him to return to his previous job.
[15] In a letter dated August 16 2012 (p. 34), Dr. Nanar wrote that the Appellant was unable to sit or stand for prolonged periods of time and was totally disabled of any kind of work.
[16] Dr. Nanar's office notes from August 1, 2009 to April 11, 2012 (pp. 75-85) revealed numerous visits, particularly after the Appellant's June 2011 workplace accident.
[17] An x-ray of the shoulders and AC joints dated October 3, 2009 (p. 86) revealed mild tendinopathy of the right subscapularis.
[18] An ultrasound of the lumbar spine dated February 20, 2010 (p. 90) was normal, apart from minor age-related osteophytes at the disc margins.
[19] In a letter dated June 5, 2012 (p. 107), L. L. Hill, a specialist in sleep medicine, wrote that he had seen the Appellant for complaints of atypical chest pain. Dr. Hill noted that an abnormal electrocardiogram suggested a previous anteroseptal infarction, although an echocardiogram showed no wall motion abnormality to support that diagnosis. Dr. Hill noted that the Appellant displayed a moderate to high likelihood for coronary artery disease by virtue of his uncontrolled diabetes but concluded his pain was non-cardiac in origin.
[20] In a letter dated July 12, 2012 (p. 110), Dr. Hill noted that a nuclear study had revealed normal ejection fraction, with a small to moderate inferior defect consistent with ischemia. Dr. Hill prescribed the Appellant with Altace and Bisoprolol.
Testimony
[21] The Appellant was born in India and attended school as far as Grade 10. After immigrating to Canada in 1988, his first job was as a quality control supervisor at a furniture factory. He also assisted in materials ordering and did some manual labor, although he never received training as a carpenter. He held this job for nine or ten years and then started to drive trucks, having obtained his license in 1991. He was employed by a series of transport contractors for Canadian Tire, driving mainly 18-wheelers on short-haul trips within Ontario. It was a hands-on job, and drivers were expected to pitch in and help unload their trucks of cargo at destinations. There was a lot of heavy lifting—up to 50 kg. On average, he would spend five or six hours per day driving and two or three hours doing manual work. He was required to use a computer on the job, insofar that he used a scanner to read barcodes on skids.
[22] He was injured at work in June 2011. While reversing his truck, he hit a loading dock and injured his back. He thought the pain would go away, but after four days it was still there. He went to see his family doctor, who told him to take one week off work and rest. However, the pain kept getting worse. After another two or three days, he went to the emergency department, But they didn't do much for him. No x-ray was taken at that time. He applied for Worker's Compensation benefits, but WSIB paid for only four or five days of physiotherapy. His disability plan at work didn't cover physiotherapy either. He has never had more than one week of physiotherapy, and does not have enough money to pay for it out of his own pocket. To his knowledge, he has never been to see an orthopedic specialist, nor has he been referred to one. He saw a chiropractor last year, although he doesn't remember the exact number of times—maybe it was eight or nine sessions. It didn't help too much. He paid for this service out of his own pocket.
[23] In 2011, Dr. Nanar prescribed for him a cane, which he uses regularly. Dr. Nanar also referred him to a neurologist, Dr. Marmor, who discussed surgery with him, although he doesn't remember what type.
[24] His current medications are Tylenol #2, Tylenol #3, Naproxen and Metformin. The pain has persisted. It extends from his lower spine to his left foot, which frequently swells.
[25] He does use a computer, but only to read the news, perhaps 10 or 15 minutes per day. He does no household chores, nor does he help with shopping.
[26] The Appellant has never attempted to return to work. Asked why not, he replied that when he sits for extended periods, his pain increases and so does the swelling. When driving a truck, he has to use his left leg to apply the clutch, and the constant on-and-off pressure would only aggravate the pain. He has not driven a truck since his workplace accident, although he continues to drive his personal vehicle, but only when using painkillers and only for 20 minutes at a time. After that point, he has to get out and stretch, whichmight allow him to drive for another 10 minutes. His daughter drove him to the hearing venue this morning.
[27] He is unable to sit for very long when he goes to temple. The most he can do is show up and then leave. He can walk up to four or five minutes if his gait is slow, one minute if fast.
[28] He can't imagine what type of work he could do. He definitely could not manage any kind of job where he'd have to sit or stand. He wants to work, but his legs and back prevent him from doing so. At nights, he gets only one or two hours of uninterrupted sleep at a time, possibly four or five hours in total. He is reluctant to take sleeping pills, as he is already taking several medications.
Submissions
[29] The Appellant submitted that he qualifies for a disability pension because:
- a) He suffers from debilitating pain and swelling in his lower back and left leg, which prevents him from sitting, standing and walking for extended periods;
- b) He has undergone physiotherapy and relies on pain medications, yet he continues to experience severe pain and reduced mobility, rendering him incapable of performing any kind of regular paid employment.
[30] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- a) The neurologist's February 2012 report indicated that the Appellant's back showed some degenerative changes, but no nerve root involvement that would account for the intensity of his pain;
- b) Although he may no longer be able to work as a truck driver, the medical evidence suggests that he retains functionality and is still capable of alternative forms of employment that may be suitable to his limitations.
Analysis
[31] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability on or before December 31, 2013.
Severe
[32] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248 (CanLII)). This means that when assessing a person's ability to work, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience.
[33] Where there is evidence of work capacity, a person must show that effort at obtaining and maintaining employment has been unsuccessful by reason of the person's health condition (Inclima v. Canada (A.G.), 2003 FCA 117 (CanLII)).
[34] In this case, the balance of the evidence persuaded the Tribunal that the Appellant does suffer from a severe disability. First, there is objective evidence in the medical record to indicate that there has been significant damage to the Appellant's lumbar spine, most notably the August 2011 CT scan, which showed multilevel degenerative changes, including moderate to severe stenosis at the L4-L5 and L5-S1 nerve root foramina. The Tribunal disagreed with the Respondent that these findings showed no nerve root involvement that would explain the Appellant's pain and notes that these changes were not present in the pre-accident February 2010 ultrasound, which is consistent with the Appellant's account that he suffered a traumatic injury in June 2011. Also enhancing the Appellant's credibility were Dr. Nanar's office notes, generated in the context of treatment, indicating a marked increase in the frequency of the Appellant's visits after his accident.
[35] The Tribunal found it mildly surprising that the Appellant had never been referred to an orthopedic specialist, given the degenerative changes in his spinal column; however, he was seen by a neurologist, Dr. Marmor, who ruled out surgical intervention and clearly stated that it was "not realistic" for the Appellant to return to his previous job.
[36] The question arises, then, whether he was capable of some alternative type of work that might have accommodated his pain. Applying the Villani criteria, the Tribunal was hard pressed to imagine what else the Appellant could do, given his age, education and work experience. Now 57 years of age, the Appellant does not even have the equivalent of a High School education and has done nothing else in his working life except low-skilled manual labour. He would be an unlikely candidate for a job in the retail sector and is probably too old to acquire new, marketable skills.
[37] The Tribunal's one reservation lay in whether the Appellant had done everything reasonably possible to overcome his injuries and regain functionality. Here, the record was mixed; while the Appellant did undergo physiotherapy following his workplace accident, he received only five sessions. Dr. Marmor felt that he would have benefited from further physiotherapy, but the Appellant testified that he didn't have the resources to pay for it, the WSIB having rejected his application for coverage. In the end, the Tribunal accepted this explanation as reasonable and valid.
[38] The Appellant's testimony, although vague on details, conveyed forthrightness, and his description of his symptoms and their effect on his ability to function in a vocational setting were credible. The Tribunal gave weight to the Appellant's Canadian work history, which included more than 20 continuous years of earnings. One can reasonably surmise that an individual with his kind of demonstrated work ethic would not have left the labour market unless there was some substantive underlying cause.
[39] In the opinion of the Tribunal, the Appellant's ongoing symptoms of back and leg pain are adequately supported by medical evidence and render him unfit for any sort of employment. Taking a "real world" approach, it is difficult to imagine how a person of the Appellant's age, given his one-dimensional vocational experience, would be able to retrain or secure alternative employment with such physical debilities.
Prolonged
[40] The Tribunal found that the Appellant's disability is long continued. He testified that his back pain goes back to a 2009 workplace injury, and this was corroborated in histories documented in several of the medical reports. The Appellant's condition would also appear to be of indefinite duration, as it is difficult to see how his condition can significantly improve at this late date, even with further physiotherapy or through the use of new pain medications. For these reasons, the Tribunal concluded the Appellant's disability was indeed "prolonged" in accordance with the statutory definition.
Conclusion
[41] The Tribunal finds that the Appellant had a severe and prolonged disability in June 2011, the month of his workplace accident. According to section 69 of the CPP, payments start four months after the date of disability. The Appellant's payments will therefore start as of October 2011.
[42] The appeal is allowed.