Canada Pension Plan (CPP) disability

Persons in attendance

• Appelant: D. O.
• Moral support for Appellant: A. O.
• Representative for the Respondent: Daniel Willis
• Expert Witness for the Respondent: Dr. Micheline Bégin

Decision

[1] The Tribunal dismisses the appeal.

Introduction

[2] The Appellant filed three applications for Canada Pension Plan ("CPP") disability pension, as follows:

1. a) In July 1992, based on being unable to lift bend, sit or being on his feet for periods of time and last day of work on March 14, 1990; the application was denied, the decision to deny was confirmed on reconsideration, a Review Tribunal hearing of May 10, 1994 determined that a CPP pension was not payable, and the Pension Appeal Board denied the Appellant's leave to appeal.
2. b) In January 1995, based on being unable to lift bend, sit or being on his feet for periods of time and last day of work on March 14, 1990; the application was denied, the decision to deny was confirmed on reconsideration; and there was no further appeal.
3. c) On May 27, 2008, based on "lower back problem due to injury" and last day of work March 14, 1990; the application was denied, the decision to deny was confirmed on reconsideration; the Appellant appealed and in December 2010 applied for a division of unadjusted pension earnings (DUPE); this application is the subject of this appeal.

[3] On April 19, 2012, a Review Tribunal (RT) determined that a CPP disability pension was not payable.

[4] The Appellant filed an Application for Leave to Appeal that RT decision (the "Leave Application") with the Pension Appeal Board (PAB) on July 26, 2012.

[5] The PAB granted leave to appeal on September 14, 2012. 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.

[6] The hearing of this appeal was in person for the reasons given in the Notice of Hearing dated November 15, 2013.

The law

[7] 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 CPP as it read immediately before April 1, 2013.

[8] 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:

1. a) Be under 65 years of age;
2. b) Not be in receipt of the CPP retirement pension;
3. c) Be disabled; and
4. d) Have made valid contributions to the CPP for not less than the Minimum Qualifying Period (MQP).

[9] 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.

[10] 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.

Issue

[11] The RT decision relating to the Appellant's first CPP disability application found that the Appellant did not have a severe and prolonged disability as at the date of the hearing which was May 10, 1994.

[12] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the end of the MQP is December 31, 2011 (after application of the DUPE).

[13] In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability between May 11, 1994 and December 31, 2011 (the MQP).

Evidence

[14] The Appellant testified by narrative and also in answer to the Tribunal's questions. The Respondent also had one witness, Dr. Micheline Bégin, who responded to Counsel's questions. The parties agreed and the Tribunal is satisfied that Dr. Bégin is an expert in internal medicine. Each party was given the opportunity to ask questions of the other, and the Tribunal asked questions.

[15] The Appellant was 51 years old at the MQP. He did not graduate from high school and he was last enrolled in grade nine, which he did not complete. He is bilingual (English and French).

[16] The Appellant last worked in March 1990 and was employed at the Sherman Mine in Temagami, Ontario, as a loader operator. He was hurt at work, having fallen from a loader, and he has not worked since that day. He was 30 years old at the time and had been working in this job since 1982 or 1983. Prior to this, the Appellant had worked in a grocery store for five or six years.

[17] The Appellant testified that his main problem that prevents him from working is his back. In addition, he has numbness in his legs, mostly the right leg, and he has headaches and ear problems from a head injury in the 1980s.

[18] The Appellant has had the same family doctor since 1990, Dr. Tom McDermott. The Appellant sees this doctor every couple of months since before the accident.

[19] After the accident, the Appellant was in hospital and was treated for what he described as a disc injury. He testified that he was given medication in the hospital, taken for x-rays and had physiotherapy. After discharge, the Appellant continued physiotherapy two or three times a week for a year or two. He also took medications: ibuprofen, pills to sleep at night and, in the past two or three years, depression pills.

[20] The Appellant stated that his physical condition is probably worse now than in 2011 and that he was worse in 2008 than in 2005. He testified that his back is sore every day and he cannot do much. He cannot walk much, perhaps a quarter or half mile and then his back is sore. He is able to drive for about thirty minutes at a time. He does some household chores: passes a broom, dries dishes, shovels snow and mows the lawn. He can sit for half an hour at most, can walk about half an hour, and can stand for an hour.

[21] The Appellant described a typical day as follows: wake up at 8 or 9am, take medication, make coffee and drink it at the kitchen table, watch TV and go outside for a smoke and walk for up to 1000 meters, have lunch and take depression pills, play cards with friends after lunch, have supper, help with dishes, watch the news, then lie down or watch TV in the bedroom at 7-7:30pm, and go to sleep at 9:30 to 10pm. He stated that this would have been his typical day in 2011 also.

[22] Playing cards with friends takes place at the Appellant's house about twice a week, and they play poker for three to four hours. When his friends are over, he gives them something to drink, they play on a table, and he sits for about half an hour then gets up and goes for a smoke. The Appellant testified that he used to like to hunt and fish with the guys but last did this in 1980.

[23] The Appellant stated that he does not do physiotherapy exercises at home. He did try a stationary bike and does it "once in a while" for five or six minutes; this might be a couple of times a week and he may skip some weeks. He did not find physiotherapy worthwhile, he has not tried a pain management program, he takes ibuprofen and "other medications" but he has not had any other treatment for his back.

[24] In terms of treatment for depression, the Appellant has taken medication but has not had any other treatment.

[25] The Appellant stated that he has "really bad days" about five days out of seven and that on really bad days he will get out a bottle of rum. When asked how much he drinks, the Appellant said half a mickey after two beers and the odd time he will drink wine.

[26] The mine that the Appellant worked at closed at the end of March 1990. The Appellant has not looked for work or attempted any retraining since March 1990. He testified that his trade is mining and people are making $50-60 an hour in this trade, and he is not willing to work pumping gas or at a Tim Horton's. The Appellant maintained that he cannot work, "it is as simple as that". He has not spoken to anyone or gotten information on any kind of work, even part time work, since 1990.

[27] The Appellant received Workers' Compensation Benefits from March 1990 to May 1993.

Medical Documents Prior to May 11, 1994

[28] The Appellant went to the emergency room on March 14, 1990 after his workplace fall. The notes from this visit state that he sustained a low back sprain following a fall "off loader today". Dr. Bégin testified that a sprain means a soft tissue injury and no fracture.

[29] On April 19, 1990, Dr. McDermott wrote a note for the Worker's Compensation Board (WCB). It states that the Appellant had a previous back injury and it is difficult to say if this low back strain is a recurrence or something new. In the doctor's opinion, the back strain "should gradually clear without too much problem; presently off work feels he is unable to work now …"

[30] On April 30, 1990, Dr. McDermott decided to admit the Appellant to the Temiskaming Hospital because he had not been improving at home. Dr. Bégin testified that the medical notes show that the Appellant also had what seems like a hiatal hernia problem. While in hospital, the Appellant received physiotherapy and was to continue with proper low back care and exercises at home. He was discharged on May 4, 1990 with Elavil (an anti-depressant) noted under "Discharge Meds".

[31] On July 26, 1990, Dr. McDermott wrote to the WCB. He had seen the Appellant three times, once in each of April, May and June, for pain in the low back. The doctor noted that x-rays taken on April 11 showed normal thoracic spine and normal lumbar spine. He also wrote that the Appellant "was in a situation in June, where he felt there was no work available for him in the community. He thought he could go back to light duty if that was available for him but unfortunately, it was not. His limitations would be lifting more than 20lbs, bending, prolonged sitting, avoidance of jobs or drawing movement to his back, stopping and twisting movements with his back."

[32] The Appellant was referred to an orthopaedic surgeon in November 1990. Dr. J.E. Holmes' report of November 19, 1990 notes "no acute bony abnormality" and "no definite evidence of sciatica today". His opinion was that the Appellant needs to be assessed by the Rehabilitation Department of WCB because "it is unlikely that he is going to be able to get back to his previous job as a heavy equipment operator." In March 1991, Dr. Holmes stated "I think he should find some sort of light work and I don't think he would be helped by surgical intervention."

[33] The Appellant was assessed by a physical medicine and rehabilitation specialist in May 1991. Dr. W.M. Mitchell concluded: "This man has postural back pain and he requires a vigorous supervised rehabilitation program for his back … His posture is poor and he has been shown exercise to correct this and this just hasn't been working. This is why I think he needs to put in a number of hours everyday of intensive exercises." In July 1991, Dr. Mitchell stated that the Appellant should go into a work assessment program at a physiotherapy clinic or a hospital rehabilitation program and "[i]n the meantime, he will have to have some type of program in his own home town which will involve bicycling, swimming and working out in a Fitness Club".

[34] The Appellant was sent by WCB for assessment to orthopaedic surgeon Dr. J.C. Wardhill in August 1991. This specialist recommended: (1) no further investigation and no further formal treatments, (2) that the Appellant be considered unfit for laboring work that involves prolonged bending and lifting, and (3) that he be considered fit for light work. He also stated "I have great pains to point out to him that he must adopt the responsibility for looking after his own back problem and try to find work that is within his capabilities."

[35] A physiotherapy evaluation was done by Laurentian Hospital in September 1991. The physiotherapist notes that the Appellant reported that exercises were not beneficial and he does not do them regularly. This evaluation also states that a conditioning program as recommended by Dr. Mitchell may be of benefit, "[however the Appellant] has already attended for physiotherapy without improvement. He also has a negative attitude toward exercises for his back and therefore there may be a disappointing outcome from involvement in such a program."

[36] In September 1991, the Appellant was tested by Northern College for academic upgrading. The Testing Result Form notes that the Appellant's skills are very weak on multiple levels and that he "will probably need intensive one on one tutoring before he can handle our program."

[37] Dr. McDermott completed a medical report for the Appellant's first CPP application, dated December 5, 1991. He noted a long history of intermittent low back pain, starting in 1988, and previous periods of not being able to work as a result. Treatment is stated as medication and exercises, with no change over several years; and the prognosis is "problem with low education level with mechanical back pain limited from doing physical work."

[38] The Appellant was referred to the physiotherapy department of the Temiskaming Hospital in November 1992. In February 1993, Progress Notes written by the physiotherapist state that the Appellant has been treated by various therapists, modalities have not been helpful in reducing pain, he lacks motivation to do his program, his attendance is sporadic and "he finds beer helps the pain more". The physiotherapist's conclusion is that there is no further benefit in attending therapy.

[39] In May 1993, the Appellant submitted a second application for CPP disability benefits. He wrote that his doctor "doesn't think I'll ever be able to go back to work. He claims that I'll never be able to work."

[40] Dr. McDermott wrote a letter dated September 1993 to Health and Welfare Canada in response to an inquiry. He summarized the Appellant's situation as this: "his situation remains about the same as it was two years ago. He still continues to have low back discomfort which seems to be a mechanical back pain. There doesn't appear to be any nerve root involvement or sign of worsening symptomology."

[41] The Appellant is referred to Dr. Mitchell again in December 1993. His report notes that the Appellant is so out of shape that he would have difficulty carrying on any job, and that "It is unfortunate because this is really a back pain that could be fully rehabilitated if he got into the proper strengthening and work hardening program. However, he would also have to have the motivation …"

Medical Documents between May 11, 1994 and December 31, 2011

[42] A CPP Medical Report was submitted in December 1994 by Dr. McDermott. It states the Appellant has a low level of education, poor physical condition generally, and "chronic back strain – same for many years unlikely to change".

[43] The Appellant was referred to Dr. Mitchell again in January 1996. His report notes that the Appellant complains of low back pain and headaches for the past seven or eight months. Dr. Mitchell goes through historical information and the medical reports of Dr. McDermott and describes the comprehensive physical examination conducted on January 3, 1996. The report states that "the examination I conducted today did not reveal any physical cause for his chief complaint of disabling low back pain" and it asks for the opportunity to review other reports prior to making a final decision.

[44] The next medical report on file is the CPP Medical Report submitted by Dr. McDermott on March 28, 2008, in relation to the Appellant's third application. The listed diagnoses are chronic back pain, alcohol abuse and depression; current medications are two anti-depressants, brand name ibuprofen and a stomach acid inhibitor. On prognosis and treatment, the doctor wrote "no change in status stated unable to sit or stand for extended period and lift over 10 lbs." In a November 2008 letter written at the request of the Appellant, this doctor wrote that the "degree of pain that he has is indeed the same over many years now" and "the same disability is present up to now since 1988 when he was employed at Sherman Mines." In April 2009, at the request of the Appellant, Dr. McDermott wrote a letter enclosing xrays and stating that "he remains the same" and "he has pain with using his back for lifting and repetitive movements".

[45] On March 26, 2010, Dr. McDermott sent a copy of his clinical notes for office visits pertaining to the Appellant's back problems. He noted in November 1994 "exercising hurts too much so does not do them".

[46] The Appellant applied for Workplace Safety and Insurance Board (WSIB) compensation based on hearing loss. His non-economic loss (NEL) benefit for noise- induced hearing loss was rated at 7% then increased by 3%. The WSIB case manager explained in a letter dated February 18, 2011 that the 3% increase "does not render you totally disabled, it is more suggestive of degenerative changes over the 14 years period from your previous NEL assessment. Therefore, as you are not considered to be totally disabled and incapable of working, your request for a full NEL benefit is denied."

[47] Dr. McDermott's clinical notes from January 2010 to 2012 are on file. Dr. Bégin referred in evidence to the following entries:

1. a) January 13, 2010: physical examination did not show much;
2. b) February 26, 2010: patient "states can't work minimum wage since his trade is mining and he won't work pumping gas or working Tim Horton's because of his back";
3. c) March 3, 2010: His situation has not changed much and he seems mobile at present; and
4. d) February 8, 2011: is the same as previously; is complaining of back pain; tells me to make a note that it is worse than last year.

Post-MQP Medical Documents

[48] On June 28, 2012, Dr. McDermott wrote a letter to the PAB enclosing medical records and stating "his main issues with disability are persistent problems with low back pain and cause difficulties with prolonged sitting and standing. He has problems with lifting all but light weights. The second problem, perhaps the largest problem, is one of his education." In the doctor's clinical notes of June 28, 2012, he wrote "He certainly does have limitations intellectually and that may qualify him more than his physical disability for being off work."

Other Medical Evidence

[49] Dr. Bégin testified where there is an injury of the type the Appellant suffered, physiotherapy and exercises must be done as soon as possible after the injury. When the patient does the recommended exercises and it hurts, this does not mean it is harmful to that person's body. The patient should continue to do the recommended exercises and will have benefit from them. This was referred to as "hurt versus harm". In essence, it might hurt to do the exercises, but this does not harm the body.

[50] Dr. Bégin pointed to medical records that show that the Appellant was not doing recommended physiotherapy exercises since right after his March 1990 injury and at many points since then. In the Appellant's case, the most important time for him to work on rehabilitation was in 1990, 1991 and 1992. Over the years, the Appellant's physical condition would become worse, and it would become more difficult for the Appellant to return to work because of his conditioning.

[51] Dr. Bégin noted that there are no formal medical reports between 1996 and 2008 and only one clinical note. The medical documentation on the whole does show that the main concern is the Appellant's mechanical back pain and that the treatment was conservative throughout.

Submissions

[52] The Appellant submitted that he qualifies for a disability pension because:

1. a) He was disabled and unable to work since 1990 which is prior to his MQP;
2. b) His medical condition, specifically back pain, prevents him from taking all forms of employment; and
3. c) He remains incapable to return to work now.

[53] The Respondent submitted that the Appellant does not qualify for a disability pension because:

1. a) The burden rests on the Appellant to establish that he had a severe and prolonged disability on or before the MQP and he has not met that burden;
2. b) In particular, the Appellant has not demonstrated that he complied with the treatment recommended for him;
3. c) The evidence does not show that the Appellant was unable to do any substantially gainful work at or prior to the MQP; and
4. d) The Appellant has not made a single attempt to seek work of any kind since 1990.

Analysis

[54] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability between May 11, 1994 and December 31, 2011.

[55] The Minister is not required to prove that the Appellant is capable of working; a claimant bears the onus of proving that he or she suffers from a severe and prolonged disability prior to his or her MQP (Dossa v. Canada (PAB), 2005 FCA 387).

Severe

[56] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). This means that the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience, when determining whether a person is incapable regularly of pursuing any substantially gainful occupation.

[57] It is the capacity to work and not the diagnosis of the disease that determines whether the disability is severe (Klabouch v. Canada (Minister of Social Development), 2008 FCA 33).

[58] An extensive medical record was produced and all the evidence, oral and documentary, was considered by the Tribunal.

[59] This application is based on a "lower back problem due to injury". While there is mention in the medical records of depression and alcohol consumption, the Appellant has not relied on these problems and has not presented evidence that they affect his ability to work. The evidence given, medical and non-medical, relates to the Appellant's low back pain and its impact on his capacity to work.

[60] Two of the orthopaedic specialists who assessed the Appellant in 1990 and 1991 were of the opinion that he was able to do light work. Reports in November 1990 (Holmes) and July 1991 (Wardhill) noted that the Appellant was considered fit for and should find light work. Dr. McDermott in CPP Medical Reports of December 1991 and December 1994 stated that the Appellant's condition had not changed over several years. In May 2008, November 2008 and April 2009, Dr. McDermott stated that the pain is the same over many years, it is the same disability since 1988 and "he remains the same". In his clinical notes of February 2011, Dr. McDermott wrote "the same as previously".

[61] There is evidence of work capacity in 1990 and 1991, and his condition stayed essentially the same through to 2011. Although the Appellant stated that he was worse in 2011 than in 2008 and 2005, the medical records do not support this assertion.

[62] 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).

[63] The Appellant's position is that he cannot work in his trade and he will not work in another kind of job. He maintains that he simply cannot work, and he has not made any effort to look for or obtain any form of employment since 1990.

[64] The severity of a disability is not premised upon an individual's inability to perform his or her regular job, but rather his or her inability to perform any work (Canada (M.H.R.D.) v. Scott, 2003 FCA 34).

[65] The Appellant's efforts to follow recommended treatment also warrant comment. Physiotherapy and home exercises were recommended starting in March 1990. The Appellant received physiotherapy in April and May 1990 and was to continue with low back care and exercises at home. In May and July 1991, two different specialists recommended a number of hours each day of intensive exercises and a physiotherapy clinic or hospital rehabilitation program. Similar recommendations were made by other specialists and physiotherapists in August and September 1991, but the Appellant did not do the exercises regularly. He was referred to another physiotherapy program in November 1992, but treatment was discontinued because the Appellant lacked motivation, his attendance was poor, and there was no benefit as a result.

[66] In December 1993, Dr. Mitchell continued to be of the view that the Appellant's back pain "could be fully rehabilitated if he got into the proper strengthening and work hardening program". Dr. McDermott noted in November 1994 that the Appellant was not exercising because it hurt too much. The Appellant testified that he does not do physiotherapy exercises at home and has not done exercises regularly in the past.

[67] Applicants for disability entitlement need to demonstrate a good-faith preparedness to follow obviously appropriate medical advice (Lombardo v. MHRD (July 23, 2001), CP 12731 (PAB)).

[68] As to the reasonableness of the Appellant's refusal to follow recommended treatment, the reasons given for not doing exercises were that it was not worthwhile and had not worked. It is clear from the evidence, oral and documentary, that the Appellant did not really try the recommended physiotherapy or rehabilitation treatments, either in hospital, in clinic or at home. He did attend some hospital and clinic sessions, but he lacked motivation to do the programs and did not exercise at home. I find that this non- compliance was not reasonable in the circumstances.

[69] For the reasons stated above, I find that the Appellant did not have a severe disability at the MQP.

Prolonged

[70] Since I have decided that the Appellant did not have a severe disability, I need not decide whether it is prolonged.

Conclusion

[71] The appeal is dismissed.