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Persons in attendance
- Counsel for the Respondent: Nancy Luitwieler
- Witness for the Respondent: Dr. Allan Bellack
Decision
[1] The appeal is dismissed.
Introduction
[2] On September 22, 2008, a Review Tribunal determined that a Canada Pension Plan (the "CPP") disability pension was not payable.
[3] The Appellant originally filed an Application for Leave to Appeal that Review Tribunal decision (the "Leave Application") with the Pension Appeal Board (PAB) on December 22, 2008.
[4] The PAB granted leave to appeal on March 3, 2009. Pursuant to section 259 of the Jobs, Growth and Long-term Prosperity Act of 2012, the Appeal Division of the Tribunal is deemed to have granted leave to appeal on April 1, 2013.
[5] The hearing of this appeal was conducted in person for the reasons given in the Notice of Hearing dated December 4, 2013.
The law
[6] To ensure fairness, the Appeal will be examined based on the Appellant's legitimate expectations at the time of the original filing of the Application for Leave to Appeal with the PAB. For this reason, the Appeal determination will be made on the basis of an appeal de novo in accordance with subsection 84(1) of the Canada Pension Plan (CPP) as it read immediately before April 1, 2013.
[7] 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).
[8] 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.
[9] 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 or she 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.
[10] The Social Security Tribunal Regulations (Regulations) provide as follows:
4. A party may request the Tribunal to provide for any matter concerning a proceeding, including the extension of a time limit imposed by these Regulations, by filing the request with the Tribunal.
6. A party must file with the Tribunal a notice of any change in their contact information without delay.
12. (1) If a party fails to appear at a hearing, the Tribunal may proceed in the party's absence if the Tribunal is satisfied that the party received notice of the hearing.
(2) The Tribunal must proceed in a party's absence if the Tribunal previously granted an adjournment or postponement at the request of the party and the Tribunal is satisfied that the party received notice of the hearing.
Issue
[11] The Tribunal must decide whether the appeal should be dismissed for want of prosecution, or continue in the Appellant's absence.
[12] There was no issue regarding the MQP as it was not disputed. The Tribunal finds that the MQP date is December 31, 2003.
[13] 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 the date of the MQP.
Evidence
Preliminary Matter
[14] On July 24, 2013 the Tribunal sent a Notice of Hearing to both parties which set the hearing for September 19, 2013. On September 13, 2013 counsel for the Appellant wrote to the Tribunal and requested an adjournment of the hearing so that he could locate the Appellant. The adjournment was granted, and a letter confirming this was sent to both parties on September 17, 2013 (see Exhibits 4, 5 and 6).
[15] This matter was rescheduled for March 5, 2014. The Notice of Hearing scheduling this date was sent to both parties on December 3, 2013.
[16] Counsel for the Respondent contacted counsel for the Appellant from the hearing location on March 5, 2014. She was advised that counsel for the Appellant was not planning to attend the hearing. The Appellant did not attend the hearing.
Disability
[17] As the Appellant did not attend the hearing, his evidence is taken from the documents in Exhibit 1. The Appellant filed three applications for CPP disability pension. The first application was received by the Respondent on January 6, 1995. In this application, the Appellant wrote that he was born in Barbados and completed grade 10 there. He worked there, before coming to Canada in 1970. The Appellant worked on a farm, then as a Porter for the Region of York, where he worked until March 1994. He claimed that he was disabled as a result of a back injury after falling at work in September 1988. This injury was treated with Tylenol and physiotherapy. This application was denied by the Respondent.
[18] The Appellant's second application for CPP disability pension was received by the Respondent on May 29, 2003. The Appellant wrote that he worked for the Region of York as a Porter until May 2001, and was on light duties but could no longer continue with them. He claimed that he suffered from low back pain that was worse with exertion or normal activity, and was easily fatigued at work. He was diagnosed with diabetes in 2002, which was treated with medication. He was restricted from doing overhead chores, bending, and lifting greater than ten kilograms. He became stiff when driving, and had to take breaks. He was prescribed Tylenol 3, Mobicox, and diabetes medication. This application was also denied by the Respondent.
[19] The Appellant's last application was received by the Respondent on August 17, 2004. In this application, the Appellant made the same claims. In addition, he claimed to suffer from blurred vision, headaches and dizziness. This is the application at issue in this proceeding.
[20] Dr. Bellack testified for the Respondent. He was accepted as an expert witness in family medicine. His opinions were based on a review of the medical records in Exhibit 1. He adopted the statements made in Exhibit 3 as his testimony. He testified that the Appellant's main medical condition at the MQP was back pain. At this time, it was treated with Tylenol 3 as needed, and Meloxicam. The Appellant was also taking medication for diabetes, and high cholesterol.
[21] The Appellant complained to his doctor about pain from vacuuming. Dr. Bellack testified that this activity would be contra-indicated due to the Appellant's injury and back pain.
[22] The Appellant consulted with Dr. Bertoia, orthopedic specialist, who wrote a report dated November 8, 1994. He reviewed the Appellant's condition, and opined that the best the Appellant could hope for was to control his pain with activity modification and regular exercise. He recommended that the Appellant consider alternate employment, and attend for a functional abilities evaluation. He would need permanent job modifications.
[23] The Appellant did attend for a functional Abilities Evaluation, in August 1995. The report from this stated that the Appellant didn't meet demands in testing, and was restricted by psychophysical factors. The Appellant refused to complete a number of the testing activities although there was no physical or biomechanical reason for him to do so. Dr. Bellack testified that the report also included a list of activities that the Appellant could do, including cleaning bathrooms and mopping for 30 minutes. A gradual modified return to work was recommended and implemented.
[24] The Appellant consulted with Dr. Soon-Shiong, orthopedic specialist, who reported on February 14, 2002. He wrote that the Appellant continued to have discogenic back pain. He was not a surgical candidate, and should look to retraining or job duty modification to minimize his symptoms.
[25] The Appellant's employer arranged for an Ergonomist to investigate and report on the suitability of the Appellant to his prior job. The report is dated October 3, 2002. It concluded that the job of Porter was not suitable to his limitations, and recommended that he look for alternate work within municipal government.
[26] Dr. Evans, Internist, treated the Appellant on a regular basis for a number of years, and penned a number of reports included in Exhibit 1. On May 2, 1996 he wrote that the Appellant had a permanent partial disability due to back pain, with moderate decreased range of motion in his spine. On February 6, 2003 he repeated these statements, and opined that the Appellant's back pain was chronic/stable. On July 5, 2004 he wrote that no improvement of his status was expected in the foreseeable future.
[27] The Appellant completed a Request for Further Information CPP Disability Form on April 4, 2009. He reported that he had not sought work or retraining opportunities since May 2001.
[28] The Appellant also claimed to suffer from depression. He consulted with Dr. Kiraly, psychiatrist, who penned a report on November 22, 2006. He wrote in this report that the Appellant had seen another psychiatrist historically, but no details were given about any diagnosis or treatment. Dr. Kiraly reported that the Appellant began to have depressive symptoms in 1992 after his father died, he lost his house and his marriage ended. He was socially withdrawn and isolated, had crying episodes in the past and decreased concentration, was irritable, angry, and forgetful. He diagnosed the Appellant with major depressive disorder with chronic pain syndrome. He also diagnosed the Appellant with Post-Traumatic Stress Disorder. He prescribed medication and recommended that the Appellant attend for group therapy.
[29] Dr. Bellack reviewed the reported scores on the depression inventories given to the Appellant by Dr. Kiraly and testified that the depression was moderate. He could not find anything in the psychiatric report to support the conclusion that the Appellant also suffered from Post-Traumatic Stress Disorder.
[30] Dr. Kiraly wrote a subsequent report on July 16, 2008. In this report he stated that the Appellant's activities of daily living were compromised due to pain and depression, he had minimal response to medical treatment, and no change in his mental status examination. He believed that the Appellant's ability to return to work was highly unlikely. Dr. Bellack reviewed the report and opined that the Appellant's depression seemed to have worsened by the time of this medical report.
Submissions
[31] From the materials in Exhibit 1, the Appellant submitted that he qualifies for a disability pension because:
- a) He suffered from back pain that rendered him disabled at the MQP.
[32] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- a) He did not have any severe physical medical condition at the MQP;
- b) His mental illness was not treated prior to the MQP;
- c) He had capacity to work at the MQP and did not seek work within his physical limitations.
Analysis
Preliminary Matter
[33] The Respondent made an oral request at the hearing that this matter be dismissed for want of prosecution as the Appellant did not attend the hearing, and had not contacted the Tribunal for a long period of time. She relied on s. 4 of the Regulations to support her argument. This provision gives the Tribunal authority to deal with any matter in a proceeding. The Appellant has had no notice of this request as it was made orally at the hearing. In this case, I am not prepared consider the request to dismiss this appeal for this reason without confirmation that the Appellant had notice of the request.
[34] Counsel for the Respondent also argued that this matter should proceed in the absence of the Appellant or his counsel. The Appellant was granted leave to appeal to the Pension Appeals Board in March 2009. He retained counsel to represent him in this appeal. At no time did counsel withdraw from this representation.
[35] The Tribunal sent counsel for the Appellant the Notice of Hearing for the date scheduled in September 2013. He requested an adjournment so that he could locate his client. He did not advise the Tribunal that he was not able to do this.
[36] Further correspondence and the Notice of Hearing for the hearing scheduled for March 5, 2014 were also sent to counsel for the Appellant. At no time prior to the hearing did he advise that he no longer represented the Appellant or that he could not contact him. Counsel did not attend the hearing as scheduled. It was at the hearing that counsel for the Respondent advised that she had just contacted counsel for the Appellant and learned that he would not be attending.
[37] Section 6 of the Regulations requires parties to notify the Tribunal of any change in their contact information. Neither the Appellant nor his counsel did so.
[38] Section 12 of the Regulations provides that a hearing, if it has been adjourned previously, is to proceed in the absence of a party if the Tribunal Member is satisfied that the party had sufficient notice of the hearing. This matter was adjourned at the Appellant's request. At no time did Appellant's counsel advise the Tribunal that he could not locate his client prior to the second hearing date, or what efforts he had made to do so. The Appellant did not advise the Tribunal that his contact information had changed, or that counsel no longer represented him. Therefore I am satisfied that the Appellant, through his counsel, had sufficient notice of this hearing, and that it should proceed.
Disability
[39] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability on or before December 31, 2003.
Severe
[40] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). 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. The Appellant was 55 years of age at the MQP. He had limited education, not having completed high school. He has experience in work in farming and as a Porter. There was no evidence that the Appellant had any limitations in his ability to communicate. He completed three disability pension applications and letters to the tribunal dealing with his claim.
[41] It is clear from the medical reports that the Appellant suffered from ongoing back pain after he fell at work in 1988. This condition was treated conservatively, with physiotherapy, and with non-narcotic medication. The Appellant was not a surgical candidate. The report from the Functional Abilities Evaluation demonstrates that the Appellant maintained some ability to complete physical tasks, including cleaning bathrooms and mopping. The extent of any limitations could not be ascertained as the Appellant refused to complete all testing tasks.
[42] In addition, Dr. Bertoia, and Dr. Soon-Shiong recommended that the Appellant retrain for work that was more suited to his physical limitations. The recommendation from the Functional Abilities Evaluation was the same. The Ergonomist's report also concluded that the Appellant's job was not suitable for him. Despite this recommendation to find alternate work being made to him over a course of years, the Appellant did not look for work, or attempt to retrain after May 2001.
[43] The Federal Court of Appeal concluded that 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). I find that the Appellant had capacity to work at the MQP. He made no attempt to find alternate work within his limitations. He has therefore not complied with this legal requirement.
[44] The Appellant also suffered from diabetes at the MQP. This was treated with medication. There is no evidence that this condition was not adequately controlled in this way.
[45] The Appellant suffered from depression. The report from Dr. Kiraly in 2006 stated that the Appellant suffered from depressive symptoms since 1992, and that he saw a psychiatrist at some time prior to 2006. No details were provided. The Appellant was treated consistently by Dr. Evans before and after the MQP. He did not mention depression or any other mental illness in any of the reports he penned in support of the Appellant's CPP disability pension application.
[46] For these reasons, I find that the Appellant did not have a severe disability at or before the MQP.
Prolonged
[47] Since I have decided that the Appellant does not have a severe disability, I need not decide whether it is prolonged.
Conclusion
[48] The appeal is dismissed.