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Persons in attendance
- The Appellant
- Ms. Huma Hashmi: interpreter (Punjabi to English and vice versa)
Decision
[1] The Tribunal finds that a Canada Pension Plan (CPP) disability pension is not payable to the Appellant.
Introduction
[2] The Appellant’s application for a CPP disability pension was date stamped by the Respondent on March 14, 2011. 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 to be by teleconference on November 24, 2014 for the reasons given in the revised Notice of Hearing dated October 24, 2014 (GT0A).
[4] The November 24, 2014 hearing was adjourned on the Tribunal’s own motion due to an unanticipated need for an interpreter. The hearing was rescheduled to occur by teleconference on February 25, 2015, per the Notice of Hearing dated November 6, 2014 (GT0B). This Notice of Hearing was delivered to the Appellant on November 13, 2014.
Per the Tribunal’s internal process, Tribunal staff placed a telephone call to the Appellant on February 11, 2015, and left a voicemail message reminding the Appellant of the date and time of the hearing.
[5] Prior to the delivery of oral evidence at the hearing, the Appellant advised he had difficulty reading the information in the hearing file. Nonetheless, he stated that he wished to proceed with the hearing.
The law
[6] 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.
[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.
Issue
[10] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 1997.
[11] 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
[12] The Tribunal considered all the documentary and oral evidence presented after the close of the hearing. Here is a summary of that evidence.
[13] The Appellant was 44 years old at the MQP date. He has an elementary school education (GT1-35). He is right-handed (GT1-37). In a CPP Questionnaire completed March 10, 2011 (GT1-35 to 41) the Appellant stated he stopped working in 1991 due to his medical condition. His last job prior to that was as a furniture packer for Edgewood Furniture, which he began in 1986. He injured his left shoulder at work. This was the first among three health issues preventing him from working, according to the questionnaire. The other two were: high blood pressure (BP) and diabetes. This caused him to have low energy. He also noted anxiety.
[14] According to the Service Canada Contributions sheet (GT1-31), the Appellant had unadjusted pensionable earnings of $3,542 in 1995. The Appellant said at the hearing that he did not work a single day in 1995. His doctors did not clear him to return to work, and he has not attempted such a return since 1995. He added that employers at factories did not offer him work because of the limited use of his upper extremities, particularly his left arm. When pressed for detail, the Appellant could not recall the names of the factories where he applied; but recalled being turned away from the front office before he could submit an application. The Appellant reiterated that he has been at home not working since 1995. Later in the hearing he was asked to confirm when he stopped seeking work; and he replied he could not recall.
[15] An August 23, 1991 report by Dr. J. Singh (physiatrist) stated that the X-ray of the Appellant’s left shoulder did not reveal any significant abnormality. The Appellant received an injection in his shoulder. Exercise and icing was recommended (GT1-54 to 55).
[16] In a May 12, 1992 report, Dr. I. Katz (orthopaedic surgeon) stated that the Appellant reported gradual improvement in pain management and range of motion. Manipulation under general anaesthetic was planned for July 1992 (GT1-48).
[17] A June 24, 1992 report by Dr. L. Hilbert (physiatrist) stated that the Appellant’s constant left shoulder pain persisted despite “daily rigorous physiotherapy”, acupuncture and anti-inflammatory medications, beginning December 4, 1991. The Appellant admitted that the pain was of “lesser intensity”. Treatment provided only short term relief. There were no neurological deficits in his arms. No further treatment was planned, although mobilization under general anaesthesia was queried (GT1-47).
[18] A December 23, 1992 physiotherapy report stated the Appellant had a good range of motion in his shoulder and that strength had improved to a satisfactory level. His pain was also assessed as “mild”, “lingering” but “improving”. He was advised to continue exercises at home due to a plateau at physiotherapy (GT1-46). At the hearing, the Appellant disputed this assessment, stating that the physiotherapist’s knowledge is limited to what they determine in a six-week course. His family doctor has confirmed his condition was worse, and that his pain persisted. Questioned by the Tribunal about his attempts to care for his shoulder at home since stopping work in 1991, the Appellant said he used massage creams. Such massages were required daily to control the pain to a small degree. He added that he has done nothing else in terms of independent care of his shoulder.
[19] A February 14, 2011 medical report stated that an ultrasound of both shoulders was unremarkable. There was no evidence of tendinopathy, tendon tear or bursitis. There was no evidence of impingement. In short, a normal bilateral shoulder ultrasound. A left shoulder X-ray revealed no evidence of fracture, dislocation or significant arthropathy (GT1-60).
[20] In March 2011 (according to the CPP questionnaire), the Appellant was taking medication for diabetes, cholesterol, his heart, and for sleep (GT1-40). He noted participation in physiotherapy as well.
[21] Dr. A. Hussain’s CPP Medical report of February 27, 2012 stated that the Appellant’s stopped working due to a left shoulder strain. Treatment began in July 1991. Poor energy and anxiety related to pain and difficulty in moving his left shoulder were noted. Dr. Hussain stated that the Appellant’s left shoulder was now stable. The anxiety was developed after the left shoulder injury incident; the Appellant became fearful of working in a factory or other jobs “related to his ability”. The Appellant’s hypertension, myocardial infarction, anxiety, and diabetes were noted as arising after the MQP (GT1- 42 to 45).
Submissions
[22] The Appellant submitted that he qualifies for a disability pension because:
- a) He disagrees with the Respondent’s decision to deny his application for CPP disability benefits. In June and September 2011 he wrote that he was suffering much from his medical conditions (GT1-22 and 83, respectively).
[23] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- a) The evidence does not support that he had a medical condition that would have precluded him from all work activity at the MQP and continuously since;
- b) Regarding symptoms of anxiety, there is no evidence that he was followed by a mental health care specialist;
- c) There is no indication he attempted to return to work since 1991, including lighter or modified work.
(GT1-18 to 19; GT1-85 to 89)
Analysis
[24] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability on or before December 31, 1997.
Severe
[25] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). This means that when deciding whether a person’s disability is severe, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience.
[26] 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).
[27] In the present appeal, the Appellant was a young man with limited education when he was injured at work in 1991. According to his doctor, he injured his non- dominant left shoulder (strain) (GT1-42). The incident caused him to become anxious about working at factories and other similar jobs, according to his family physician (GT1- 45). This being said, the majority of the medical evidence from that time period convinced the Tribunal that the Appellant’s shoulder injury was not severe under the CPP. On whole, the evidence pointed to an unremarkable shoulder injury of his non-dominant arm that responded to conservative treatment. An August 1991 X-ray showed no significant abnormalities. An injection was administered, and the Appellant was advised to do exercises and ice his shoulder (GT1-54 to 55). In May 1992 the Appellant reported gradual improvement in pain control and range of motion (GT1-48). The December 1992 physiotherapy report stated the Appellant had a good range of motion in his shoulder and that strength had improved to a satisfactory level, despite lingering but improving “mild” pain (GT1-46). The Tribunal notes that the Appellant disputed this report at the hearing, but did not give much weight to his testimony because it was admittedly lacking due to the passage of time.
[28] As for the other ailments the Appellant said prevented him from working (high BP; diabetes and anxiety), there was insufficient evidence to convince the Tribunal that these amounted to a severe disability under the CPP on or before the MQP. Dr. Hussain informed that the anxiety and diabetes arose post-MQP (GT1-42).
[29] The Appellant was advised to exercise and apply ice (GT1-46, 54, 55). However, the Appellant said that he only applied massage creams to manage his shoulder pain. He said that he had been essentially homebound and unemployed since at least 1995. His evidence about seeking work after 1991 was lacking due to faded memory. At best he offered vague statement that he sought similar work to what he was doing when he injured his shoulder. There is no evidence that he looked for lighter work elsewhere than factories, or that he was even interested in retraining for such work. Such limited effort to mitigate his condition and seek suitable work or retraining, certainly from December 1992 onward, undermined the Appellant’s claim for CPP disability benefits, in the Tribunal’s estimation, as this evoked the suspicion that he chose to adopt a disabled lifestyle.
[30] For the above reasons, the Tribunal finds that the Appellant did not meet his burden of proving on a balance of probabilities that he had a severe disability on or before his MQP.
Prolonged
[31] Since the Appellant did not meet the “severe” criterion, it is unnecessary to make a finding on the “prolonged” criterion. However, if it is later determined that the Tribunal is wrong on its assessment of the “severe” criterion, the following comments are offered in regards to the “prolonged” criterion.
[32] The evidence on file made it clear that the Appellant’s left shoulder injury was not prolonged. According to Dr. Hussain’s February 2012 report (GT1-45), the Appellant’s shoulder was stable. This is supported by images taken of his shoulder in February 2011, which were unremarkable (GT1-60). There is otherwise no reliable evidence that any of the other pre-MQP ailments affecting the Appellant were prolonged.
Conclusion
[33] The appeal is dismissed.