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Persons in attendance
- C. F.: the Appellant
- R. H.: the Appellant’s common-law husband
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 August 15, 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 in person for the reasons given in the Notice of Hearing dated November 12, 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 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
[8] The Tribunal finds that the MQP date is December 31, 2012.
[9] 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
[10] The Appellant was 48 years old at the date of the MQP. The Appellant completed Grade 12. She worked while in school in the summer at the Bick’s factory. She did some waitressing in the past but has worked most of her life in factory jobs.
[11] The Appellant’s last job was working for Good Humor as a machine operator from 1997 to June 2010. She was having increasing pain while working and she was given lighter duties for a time. The Appellant did not feel the new job was any lighter than her previous one.
[12] The Appellant reports she was involved in a motor vehicle accident (MVA) in 2005 and started to have pain starting in her shoulder and neck area a few years after this accident.
[13] The Appellant noticed increasing pain throughout her body that was slowly intensifying and affecting various parts of her body. This included her knees and back. She was using about 12 Tylenol #3’s per day while she was working. She described often crying at work due to the pain she was experiencing.
[14] The Appellant reported that she was missing work at least one to two days a week for several months. Her employer was not happy with her lost time and the fact that she was not performing her job as expected. They attempted to give her light work but this did not seem light to the Appellant and she went on short-term disability in June 2010 until December 2010. She was not granted long-term disability and did not appeal this decision.
[15] In December 2009 the Appellant was referred to physiotherapy for a one-month history of low back pain and right leg pain. Then again in July 2010 the Appellant was referred to physiotherapy due to chronic pain in her shoulders. (GT1-57) She testified that she had a lot of pain when receiving the physiotherapy treatments.
[16] In November 2011 the Appellant relays to her Family doctor, Dr. Bobby, that her back and neck pain is so severe at times that she can feel like vomiting. She has not found much relief when this occurs with Percocets or Tylenol #3’s. The muscle relaxants she was prescribed have not been effective. Dr. Bobby suggested a trial of Dilaudid at this time. (GT1-41)
[17] In November 2011 x-rays of the Appellant’s dorsal spine and cervical spine showed early degenerative disease with mild disc narrowing in the cervical spine. (GT1- 45)
[18] The Appellant was told she had fibromyalgia by Dr. Bobby after he had did an examination showing that she had many different tender points. Many years ago he had suggested that she see a rheumatologist but the doctor was in London and she couldn’t face a long drive. Driving aggravates her symptoms dramatically. He has not referred the Appellant to any other specialists or for any further treatments.
[19] The Appellant wrote in January 2012 that she had stuck out working at Good Humour as long as she could. She is not able to physically do the job. She states that she doesn’t know what work she could do as she cannot predict what her pain will be like from day to day. She has a difficult sleeping. She does home exercises but does not have the financial resources for physiotherapy. (GT1-14)
[20] Dr. Bobby’s clinical note in August 2012 indicates he is continuing to prescribe Dilaudid 4mg for severe pain and Percocet for milder pain. He states the Appellant cannot return to factory work or any repetitive jobs. If she chose to return to work it would have to be sedentary and frequent position changes would be beneficial. This statement regarding work was repeated verbatim in almost all computer clinical notes. (GT1-80)
[21] During 2012 Dr. Bobby’s clinical notes of the Appellant’s visits frequently indicate his opinion that the Appellant’s mental state and pain is being negatively impacted by the stress of her financial situation.
[22] Throughout 2012 Dr. Bobby was prescribing Codeine Contin, Percocets and added Dilaudid to her pain medication. He notes that with the increased pain she had been taking more pain medication. In November 2012 she reported taking 12 Percocets in a day. He regularly reports the Appellant is doing a regular exercise routine.
[23] The Appellant has hidradenitis suppurativa and in September 2011 Dr. Bobby notes that this condition had been more active of late with a lot of swelling and sores in axilla and body. (GT1-10)
[24] In September 2012 an x-ray of the Appellant’s knees and ankles. Some very minor arthritic changes noted in both knees. (GT1-89) The Appellant indicates that she experiences pain in her knees and has for some time.
[25] The Appellant continues to use strong narcotics to keep the pain manageable. It never is eliminated by the medication but is reduced somewhat. She is now prescribed OxyNeo for her pain. She does continue to do exercise when she is feeling up to it. This
includes walking her dog. If she does too much she will increase her pain. However the Appellant does feel that doing her exercises does help her to remain more mobile and manage the pain.
[26] The Appellant describes that she has more good than bad days but tries to do as much as she can. She cannot predict how much pain she would have on any given day. She reports that she would not be able to make arrangements for an activity the week before, as she would not be sure how she would feel that day.
Submissions
[27] The Appellant submitted that she qualifies for a disability pension because:
- a) The Appellant was not able to do even lighter duties at her workplace.
- b) She would like to return to work but she is not able to predict her pain.
- c) To manage the pain she has to take a significant amount of narcotics.
[28] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- a) The Appellant is not able to return to her previous job but is not precluded from sedentary work.
- b) The Appellant previously had physiotherapy but is not receiving any ongoing treatment to assist her in returning to suitable work.
- c) Investigations on file from August 2009 to February 2012 do not support any severe changes and report mild conditions. The Appellant should be capable of suitable work activities.
Analysis
[29] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before December 31, 2012.
Severe
[30] The Appellant impressed the Tribunal as a sincere and credible witness who gave convincing testimony detailing the history of her symptomatology, medical conditions, treatments, and limitations. She testified in a straightforward and consistent manner and appeared not to be exaggerating her physical shortcomings. The Tribunal accepts her testimony as honest and accurate.
[31] In this case the Tribunal is reminded of Thawed v MHRD (December 3, 2003), CP 18204 (PAB), where it states:
“Chronic pain, chronic fatigue syndrome, and fibromyalgia are all conditions with a strong subjective component. These conditions affect each individual differently. The focus of the inquiry should be on the effect of the condition(s) on the particular individual in question.”
[32] The Tribunal also takes guidance from G.B. v MHRSD, (May 27, 2010) CP 26475 (PAB) which states:
Chronic pain cannot be proven by objective evidence and there is no medical test that can measure pain or take a picture of pain, and the main evidence that must be relied on is subjective evidence or the claimant’s verbal description of pain.
[33] In Ferreira v. AGC 2013 FCA 81 confirms for the Tribunal that the key question in these cases is not the nature or name of the medical condition, but its functional effect on the claimants ability to work.
[34] The Tribunal recognizes that the Appellant’s diagnostic investigations did not show severe conditions but there is no direct correlation between diagnostic test results and the pain experienced. In this case the Appellant described an insidious slow increase in her pain over a period of time, which eventually prevented her from working. Her testimony is very credible and the significant amount of pain medication prescribed by her physician validates his belief that she was experiencing severe pain.
[35] The Appellant reported that physiotherapy produced even more pain when she attended sessions. She tries to exercise by herself in her home regularly and also takes her dog for walks as often as she can. She has reported to her doctor that doing regular exercise helps her pain to a degree and increases when she is not able to do exercises.
[36] 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).
[37] The Appellant has not worked due to significant increase in pain that started before 2010 and has not relented. She has difficulty with household chores and can only tolerate short periods driving in the car.
[38] The Tribunal finds the Appellant did not demonstrate any work capacity at the time of her MQP and as such does not have to show an effort at obtaining or maintaining employment.
[39] The predictability and reliability of the Appellant in the work force are significant considerations in the analysis of whether the Appellant is disabled within the meaning of the CPP. (B.B. v. MHRSD (October 14, 2008), CP 25356 (PAB)).
[40] The severity of her condition since 2010 has been such that she would be a decidedly unreliable employee. She states she is not able to predict the level of pain she will have from day to day.
[41] Predictability is a significant factor for the Tribunal to consider when determining if the Appellant’s disability is severe. The Tribunal finds the Appellant would be an entirely unreliable worker. She would not be capable of making a contribution to even the most tolerant of employers in the workplace due to her limitations. She was not able to maintain the modified duties provided by her last employer. The Tribunal accepts the Appellant’s report that she continued to work until she could not manage her duties because of her pain.
[42] Because of her medical condition, she would be unreliable in her attendance and the unpredictable nature of her symptoms would make part-time work unmanageable.
[43] The Tribunal notes the Appellant has not been in active treatment other than medication and the exercise she does herself. The Tribunal accepts the Appellant’s testimony that her Family physician has not referred her to any specialist. The Appellant has participated in all recommendations made by her physician. He has known her since 2002 and has managed the treatment of her conditions since she started to have pain.
[44] The Tribunal has carefully reviewed the medical reports and listened attentively to the evidence of the Appellant. The Tribunal finds that the Appellant has satisfied the Tribunal that on a balance of probabilities the Appellant did have a severe disability within the meaning of the Act at the time of her MQP.
Prolonged
[45] For the Appellant to qualify for a disability benefit, the Tribunal must be satisfied not only that the mental or physical disability is “severe”, but also that it is “prolonged.” To make such a finding, there must be sufficient evidence to establish that the disability is both “long continued” and “of indefinite duration”, or is likely to result in death.
[46] The Appellant has continued to experience pain and takes a significant amount of pain medication, which only keeps the pain somewhat manageable. She continues to experience limitations with her activities inside and outside the house. She finds her pain is not possible to predict but she does find that certain circumstances such as cold increases her pain.
[47] There is no indication from any physician reports that they expect the Appellant to be able to resume her previous level of activity. In fact Dr. Bobby states that he does not believe any improvement will occur. He has continued to prescribe increasing amounts of pain medication in an attempt to provide the Appellant with some relief.
[48] Therefore the Tribunal agrees that there is little likelihood of the Appellant’s condition improving in the foreseeable future and accepts that the Appellant’s disability is long continued and of indefinite duration.
Conclusion
[49] The Tribunal finds that the Appellant had a severe and prolonged disability in June 2010 when the Appellant could no longer work due to the pain. According to section 69 of the CPP, payments start four months after the date of disability. Payments start as of October 2010.
[50] The appeal is allowed.