Canada Pension Plan (CPP) disability

Persons in attendance

1. S. F.: Appellant
2. Brian Julien: Appellant’s representative

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 October 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 by videoconference for the reasons given in the Notice of Hearing dated November 13, 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:

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).

[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, 2007.

[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.

Background

[10] The Appellant was 36 years old on the December 31, 2007 MQP date; she is now 43 years old. She has three children D born in July, 1990, C born in February 1993, and L born in May 2010. She left school after completing grade 10 and her employment history includes working as a waitress, a chambermaid, and as a labourer in greenhouses. In 2003 she attended at the Adult Centre in X for upgrading, and then took a ten month hairdressing course at College Boreal in which she successfully completed the pre-requisites for hairdressing. She then worked at Sears Hair Studio in X where she completed the 1500 hours required for her apprenticeship.

[11] On January 30, 2007 the Appellant was driving through an intersection when her car was struck broadside at the back, and as a result of the impact her car was forced into a snow bank. She suffered injuries to her neck, right shoulder, lower back, and head. She was driven to the hospital where her neck and back were examined, and she was discharged on the same day with pain medication. The Appellant was scheduled to take her final written hairdressing examination two weeks after the motor vehicle accident (MVA). She was not able to write the examination, and she has not returned to employment since the accident.

Application materials

[12] In her CPP disability questionnaire, date stamped by the Respondent on October 19, 2011, the Appellant indicated that she last worked as a hairdresser/hairstylist from June 2005 until January 29, 2007; she noted that she stopped working because of injuries from a car accident. She claimed to be disabled as of January 30, 2007 and listed the illnesses and impairments that were preventing her from working to include chronic pain syndrome, whiplash, low back injury, depressive symptoms, reduced hearing and vision on the right side, right arm pain and numbness, headaches, and concentration/memory problems.

[13] When explaining her difficulties/functional limitations she noted the following: only able to sit or stand for 30 minutes; only able to walk for 15 minutes; only able to lift or carry five to ten pounds; unable to reach above shoulder height with right arm; bending at hips causes pain in right lower back; only able to wash hair with left hand; limitations in ability to do household maintenance; reduced hearing and vision on the right side; developed stutter following accident; short term memory problems and difficulty focusing; sleep difficulties; and only able to drive for twenty minutes. She did not list any medications, and with respect to treatment modalities she indicated that she had attended physiotherapy, massage therapy, psychological treatment, and a chronic pain assessment. She noted that she was presently attending chiropractic and massage therapy.

[14] A report dated October 13, 2011 from Dr. Chisholm, the Appellant’s family doctor, and Marnie Chisholm, nurse practioner, accompanied the CPP application. The report diagnoses back pain, neck pain, shoulder pain, and Grade II whiplash. The report notes that the Appellant is unable to perform physical activity for long periods, and that she is unable to return to her previous employment due to chronic pain in her neck, shoulder, and lower back. The listed medications include naproxen, extra-strength Tylenol, and baclofen. The listed treatment modalities included physiotherapy and massage therapy. The prognosis indicates that the pain has developed into a chronic condition, and that it is recommended that the Appellant continue with physiotherapy and massage therapy, as well as analgesics when needed. The report notes that the Appellant’s primary care has been provided solely by the nurse practitioner; that the physician has not assessed the Appellant; and that the Appellant was assessed at a pain management clinic in Hamilton where recommendations were made.

Oral evidence

[15] The Appellant reviewed in detail her education and employment history. She stated that she tried to upgrade her education in 2008 by finishing grade 12, but she was unable to successfully complete grade 11 because of her memory and concentration problems. She attended for six months, for 1-2 hours a day. She has very limited computer skills, and only uses a computer for emails and Facebook – she doesn’t even know how to do searches on the internet. She has never worked in an office setting, or on a computer.

[16] She stated that she did not have any significant medical issues prior to the MVA and described the injuries and conditions caused by the MVA as follows:

• - Constant throbbing pain in her neck, shoulder and back; it is hard for her to do anything because of the pain and she has to continually lie down and relax with hot packs; she can’t lift more than eight pounds, and has difficulty holding anything in her right dominant hand (she easily drops things)  because of the loss of feeling. She can only sit for 30 minutes, walk for 10 minutes, and stand for 30 minutes because of the pain; she also has difficulty bending.
• - She suffers from daily migraines; they come and go almost every day, and when she has a migraine she has to take a Tylenol and lie down. She finds that the migraines are triggered when she is tired, or if she tries to do too much. She finds that just doing activities such as cutting or peeling food will bring them on.
• - She has difficulty sleeping, and wakes up three to four times during the night because of the pain; she has trouble getting back to sleep and can’t take sleep medication because her stomach “rejects” the medications. She feels tired and fatigued because of her lack of sleep.
• - She had difficulty remembering and concentrating; she has to write down things so that she doesn’t forget them, and she indicated that she would forget how to do math calculations when she was trying to upgrade her high school education;
• - She loses her balance and has to move slowly; she hasn’t fallen but she experiences a loss of balance if she moves too quickly or when she goes down stairs;
• - She experiences nausea with the migraines, and feels nauseous most mornings –on some days she actually brings up in the morning.

[17] The Appellant stated that she has been experiencing all of these symptoms since the MVA. She sees Marnie Chisholm, her nurse practitioner, every two months; Ms. Chisholm prescribed medications but her stomach adversely reacted to them; her stomach became upset and she was vomiting. She now takes eight Extra Strength Tylenol a day, as well Robaxacet as a muscle relaxant. She goes for chiropractic treatment and massage therapy, and does a home exercise program for 10-15 minutes a day. She recalls attending for an assessment at the chronic pain clinic but didn’t attend the program; she claims that one of her doctors told her that this wouldn’t be beneficial and at that time she was far along in her pregnancy. She saw Dr. Blain for 20 monthly psychological sessions, but stopped going when the insurance company refused to continue to pay for them.

[18] On a typical day, she gets up and gets her son (he is 4 ½ years old) ready to go to school on the school bus. She will then lie down for about an hour because she is tired. She then gets up, does the breakfast dishes, and thinks about what she will prepare for supper – she finds this to be a challenge. She then naps and watches television. Her son comes home at 3:45. She tried to do some laundry and light household activities such as sweeping – she can only do a little at a time and has to pace herself. She doesn’t do any vacuuming or outside work because standing, bending, or picking things up is a challenge for her. She is able to read and do puzzles with her son, but can’t do any physical activities like taking him to the park. She will go grocery shopping with her husband or daughter – she has to lift the bags with her left hand, because she can’t lift anything with her right hand. She is only able to drive for short distances, and her legs and back hurt when she drives. Her only social activity is going to visit her parents in X X every three months; she often goes two or three days a week without leaving the house, and when she goes out it isn’t for more than ½ hour because of her pain and fatigue.

[19] She attempted to return to work for her husband last year when he started a new construction company; he needed someone to take tickets from truck drivers. She was only able to do this for about 20 days, and then she told her husband that she couldn’t continue because of her pain and fatigue. She hasn’t made any other return to work attempts. When asked why not, she stated, “I have no qualifications…no degree… I am not able to do any type of work because of my pain… I know I can’t do it.”

Medical evidence

[20] The Tribunal has carefully reviewed all of the medical evidence in the hearing file. Set out below are those excerpts the Tribunal considers most pertinent.

[21] On April 30, 2007 Dr. Coutts, from the Timmins After Hours Medical Clinic, noted that the Appellant suffered from cervical facet syndrome with scalene spasm causing arm painfulness.

[22] In a progress report dated June 25, 2007 Candice Laxdal, physiotherapist, reported that the Appellant continues to have neck, right shoulder and arm pain, and that she was having difficulties performing activities of daily living such as cooking and cleaning due to pain and weakness in her right arm. The report indicates that the Appellant is still unable to return to her duties as a hairstylist due to pain and parathesias in her right neck and arm. The report also that she is able to perform light duties around the house such as cooking and doing dishes, however, she cannot sweep or vacuum due to fatigue in her right arm. The report recommends continued physiotherapy treatments that will focus more on functional strengthening to prepare the Appellant for a return to work.

[23] On August 25, 2007 Carol Orok, certified kinesiologist, reported on her Functional Abilities Evaluation (FAE) of the Appellant at the request of Ing Insurance. The results of the FAE indicated that the Appellant’s demonstrated abilities to be as follows: continuous sitting and standing; no limitations on walking and stair climbing; frequent forward reaching; occasional upper level reaching and stooping/bending; rare crouching; occasional kneeling; rare axial rotation/twisting; maximus waist to shoulder lifting of 20 lbs. (four times, frequent); maximum floor to waist lifting of 30 lbs. (2 times) and 20 lbs. (4 times, frequently); carrying 30 lbs.  (30 feet, one carry); moderate push/pulling ability (50 lbs. or less); grip strength 71 lbs. left hand, and 44 lbs. right hand; and lower than normal pinch strength in right hand, and low or normal in the left hand.

[24] The report indicates that the Appellant was currently a match for a job with light physical demands, and that she was unable to perform all essential tasks of her pre-accident position. Ms. Orok opined that since the Appellant is a match for the majority of her pre-accident job tasks she would be able to return to work part-time on a modified basis. Ms. Orok recommended introduction of work on a progressive part-time schedule beginning with four hours per shift.

[25] On September 13, 2007 Dr. Cisa, orthopaedic surgeon, reported on his assessment of the Appellant at the request of Ing Insurance. Based on his examination (2 ½ hours), the oral history, and his clinical findings, Dr. Cisa concluded that at the present time the Appellant continues to suffer a substantial inability to perform the essential tasks of her employment as a hairstylist. Dr. Cisa opined that at this point of time, it is not safe for the Appellant to return to her previous full-time employment on a full-time, full-duty basis; and that she would be able to do modified work on a part-time basis. Dr. Cisa recommended continued physiotherapy with active and passive modalities, including electrotherapy and exercise both at physiotherapy and at home. He also recommended massage therapy.

[26] On January 2, 2008 Candice Laxdal reported to Ing Insurance that the Appellant has been attending physiotherapy sessions approximately three times per week since February 7, 2007, and that she has demonstrated minimal progress with treatment. The Appellant was discharged from physiotherapy due to minimal improvement t, and it was recommended that she continue with her exercise program independently at home.

[27] On February 5 2008 Marnie Chisholm referred the Appellant to Dr. Ethier for a hearing assessment due to reduced right ear hearing post-MVA. The purpose of the assessment was to rule out structural damage.

[28] On March 14, 2008 Dr. Kos and Marnie Chisholm wrote to the Appellant’s lawyer confirming that they had now arranged for the requested MRI and EMG studies.

[29] A MRI of the Appellant’s cervical spine on April 21, 2008 revealed no significant degenerative disc disease, no disc herniation, and no spinal canal stenosis.

[30] A MRI of the Appellant’s head on April 21, 2008 was normal.

[31] X-rays of the Appellant’s chest on April 23, 2008 were normal.

[32] On June 18, 2008 Dr. Cisa reported to Ing Insurance on his further assessment of the Appellant on June 4, 2008. His conclusions were based on his examination (approximately 2 hours), the history obtained from the Appellant, a review of the medical documents, and his clinical findings. He noted that his examination showed that the Appellant had a better range of motion, less pain, and less abnormal findings in the neck and right shoulder than had been observed in August 23, 2007. He opined that the Appellant’s impairments are expected to be temporary, especially given the noted inconsistencies between range of motion when limitations were being measured and not measured, and the claimed lack of strength in the upper right extremity even though there was no atrophy. He stated that the Appellant had improved significantly since he assessed her August 2007.

[33] Dr. Cisa also opined that although the Appellant’s limitations are consistent with the injuries sustained, she currently has more complaints than he would expect following this type of injury at this point in the recovery period, and that the inconsistency of the limitations suggests that she is self-limiting due to fear of pain, rather than actual inability to the move the neck and shoulder. He further opined that the Appellant does not suffer a substantial inability to perform the essential tasks of her employment; that she has mild limitation of movement of her right shoulder and neck; that the primary barrier to returning to work is her subjective complaints of pain, rather than impairments; that the neurological examination was normal; and that he did not observe any objective findings to preclude her returning to work.

[34] Dr. Cisa concluded that the Appellant should be able to return to work on a part- time basis, one hour a day for the first two weeks, gradually increasing to two hours twice a week for the next two weeks, and gradually increasing thereafter as tolerated. If a gradual return to work is not available, he recommended a 3-4 week work hardening program. He stated that the Appellant has had appropriate treatment administered in a timely fashion, and that the gradual return to work program should be implement immediately.

[35] On July 9, 2008 Deborah Armstrong, physiotherapist, reported to the Appellant’s lawyer that the Appellant was initially assessed at her clinic on January 16, 2008 and commenced treatment on February 5, 2008. Her treatment plan ended on May 5, 2008 and due to a delay in approval of the second treatment plan, she did not return to the clinic until June 25, 2008. A variety of treatments and modalities were used and the Appellant attended the physiotherapy gym on a regular basis with direct physiotherapist supervision. Ms Armstrong reported that the Appellant’s continuing symptoms primarily involved the right side of her neck, shoulder, mid-back and right arm. Her main problems were headaches, ongoing pain, weakness of her right arm, decreased range of motion, lack of full dural mobility, myofascial tightness, and decreased function. Ms. Armstrong noted that the Appellant has been very compliant with her physiotherapy program; that there is no indication of any non-organic symptoms; and that she is always willing to perform any exercises requested of her.  With respect to Dr. Cisa’s recent report, Ms. Armstrong commented that it was not likely possible for the Appellant to return to work due to her employer’s expectations, and that a work hardening program may be indicated.

[36] On July 15, 2008 Marnie Chisholm and Dr. Kos reported that the Appellant has been a patient with the VON Wellness Centre since January 22, 2008 and that she presented with complaints of chronic neck/shoulder pain accompanied by numbness and tingling to the 4th and5th digit of her left hand. The report notes that the Appellant continues to attend both physiotherapy and massage therapy sessions, and that she states that this has helped ease her pain and she feels her range of motion has improved slightly. The report also notes that the Appellant has tried different type of NSAIDs such as Advil and Toradol for pain, but admits she does not like to take medication. The Appellant’s condition was to continue to be treated as a soft tissue injury/strain and whiplash injury until nerve conduction studies are completed by Dr. Mitchell. The treatment plan was to continue with physiotherapy, massage therapy, and pain control.

[37] On August 8, 2008 Louis Favretto, physiotherapist, reported to the Appellant’s lawyer with respect to his Functional Capacity Evaluation of the Appellant. The Appellant was complaining of headaches. She also had pain at the right temporomandibular joint, the right neck and shoulder, the right upper arm and elbow, right buttock and right hamstring area. She reported tightness at the right wrist, numbness at the right fourth and fifth fingers as well as tingling at the right toes. Her neck and right upper arm symptoms were constant; all other symptoms were intermittent. Generally she felt worse with prolonged sitting beyond 30 minutes, prolonged bending of the neck, turning her neck to the left, early in the morning, at the end of the day, and when staying still. She felt somewhat better when lying down during the day and when generally moving about. Her pain disturbed her sleep nightly, and she reporting waking about hourly. Coughing and sneezing would increase the pain.  She had bouts of dizziness, tinnitus and nausea. The only medication the Appellant was taking was Advil. The diagnosis was soft tissue dysfunction at cervical spine and right shoulder, and chronic pain syndrome.

[38] Based on the results of testing, Mr. Favretto concluded that with respect to her work, the Appellant does not meet the job demands of reaching vertically when cutting longer hair or placing and retrieving supplies from higher shelves; that she does not meet the job demands of reaching at chest level as in when cutting hair; and she does not meet the job demands of bending in standing as in when shampooing clients hair. The report concludes that as a result of the MVA the Appellant suffers physical impairment at the neck and right shoulder; that these physical impairments lead to functional restrictions that greatly affect her ability to perform housework and enjoy leisure activities; and that she does not meet the essential demands of a hairdresser.

[39] On August 19, 2008 Dr. Mitchell, physiatrist, reported that he didn’t find any neurological deficits and the only finding is slight reduction in range of motion in the neck with localized tenderness that’s principally over the right sternocleidomastoid muscle which might be the source of her pain. The Appellant stated that the company she works for will not allow her to try to go back to work part time; that her lawyer has been able to get income replacement; and that she hasn’t worked since the accident.

[40] On September 4, 2008 Dr. Mitchell reported that palpation of the Appellant’s neck did not reveal any paracervical spasm, but he did find tenderness over the right occipital area where the greater occipital nerve exists through the semispinalis capitis muscle indicating that her headaches may be due to a trigger point in the muscle or compression of the occipital nerve. Dr. Mitchell was going to try a nerve block to the occipital nerve.

[41] On October 1, 2008 Marnie Chisholm forwarded copies of the reports relating to the Appellant’s consultation with Dr. Mitchell. Ms. Chisholm noted that an EMG study was not conducted because Dr. Mitchell felt the Appellant’s pain was related to paracervical muscle spasm causing a greater occipital nerve irritation.

[42] On October 24, 2008 Allison Gould, ability management consultant, reported to Ing Insurance on her vocational evaluation of the Appellant. The report identifies suitable occupations of date entry clerk, general office clerk, information clerk, receptionist, records management clerk, and front desk clerk (other than hotel). The report opines that as a result of the accident the Appellant does not suffer from a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

[43] On October 27, 2008 Deborah Soligo, vocational rehabilitation consultant, reported to the Appellant’s lawyer with respect to her vocational rehabilitation assessment of the Appellant. The report indicates that the Appellant has several vocational limitations because of her exacerbated pain levels, physical limitations, and headaches. The report also notes that the Appellant describes difficulty with memory, focusing, and concentrating since the accident, and that her educational and employment background are also significant vocational limitations. The report concludes that the Appellant is likely not going to be able to return to work as a hairdresser, which involves prolonged standing, working at or above shoulder height with both arms, and working with tools to style hair. The report also notes that she could not return to physically demanding work as a greenhouse worker, waitress, dishwasher, or chambermaid. The report concludes that the Appellant cannot return to any of her pre-accident jobs; that she is not a good candidate for academic upgrading; and that given her current level of disability she is unemployable.

[44] On November 18, 2008 Dr. Ogilvie-Harris, orthopaedic surgeon, reported to the Appellant’s lawyer on his orthopaedic consultation. The Appellant’s current symptoms included headaches; pain in the paracervical areas; pain in the paralumbar areas and sacroiliac joints; pain in her right thigh and calf; and poor sleep. The Appellant has tried various medications but has difficulty with them because of her stomach. The Appellant’s neurological examination was normal and the Appellant was positive for five out of five Waddell’s sign which Dr. Ogilvie-Harris opined was indicative of an adverse psychological response to injury and a poor prognosis for recovery. Dr. Ogilivie-Harris felt there were features of a chronic pain syndrome with central sensitization. Dr. Ogilvie-Harris concluded that given the Appellant’s ongoing functional limitations she did not have the physical capability of returning to her previous job as a hairstylist because she would have difficulty with movements of her cervical spine and right upper extremity.  Dr. Ogilvie-Harris opined that the Appellant requires a chronic pain management program; following which she requires a vocational assessment and transferable skills analysis; and that she may require retraining into a job which is within her physical capacity.

[45] On December 24, 2008 Dr. Cisa reported to Ing Insurance on his orthopaedic assessment of the Appellant conducted on December 10, 2008. This was his third assessment of the Appellant (previous assessments on August 29, 2007 and June 4, 2008); he spent one hour and forty five minutes with the Appellant. He noted that the Appellant was still attending physiotherapy once a week; that she attends a gym twice a week; and that she has massage therapy once a week. He also noted that she had undergone two cortisone injections (one to her neck, and one to her shoulder) from Dr. Mitchell. She was taking Advil for pain management. Based on the history, his clinical findings, and his review of the medical documents, Dr. Cisa concluded that the Appellant had recovered from her injuries; that she had full, normal range of motion of her cervical spine and shoulder; that the lack of strength demonstrated was inconsistent and not supported by the lack of atrophy of the upper right extremity; and that her ongoing complaints and perception of limitations are not consistent with the physical examination which showed full range of motion of her neck and shoulders.

[46] Dr. Cisa opined that the Appellant does not suffer a complete inability as a result of the accident to engage in any employment for which she is reasonably suited by education, training or experience, and noted that vocational assessment has identified several jobs she would be capable of doing. He discussed return to work with the Appellant, and she stated that she feels she would be available to return to her previous job if it was available, even if at the beginning she could only work part time for the first two or three weeks.

[47] On January 23, 2009 Dr. Miller, psychologist, reported to the Appellant’s lawyer with respect to his psychovocational assessment of the Appellant conducted on November 6, 2008. The report notes that she has been involved in a relationship for the last 1 ½ years; that they go out to dinner and to the movies and visit with family; that apart from that her social life is much quieter; that she doesn’t have the energy to do many things and tends to stay home more; that she spends most of her time in the apartment doing chores, occasionally surfing the Internet and watching television; and that she does not do much reading as flexion aggravates her neck.

[48] Dr. Miller stated:

The way she is currently feeling and functioning, Ms. S. F. believes that she would have difficulties returning to her pre-accident work as a hairdresser due to limitations with bending, standing, and lifting her arms. She would not be able to work as a waitress because of lifting demands. Her work as a labourer in the nurseries involved heavy demands including carrying, which she is unable to manage due to her neck and back pain. The job demands of a chambermaid involve bending and moving a heavy vacuum cleaner, as well as working quickly. Ms. S. F. does not believe that she can return to any of these pre-accident occupations. She has thought about returning to school to study bookkeeping, but she has concerns about the prolonged sitting demands. Her massage therapist suggested that she become a supply teacher. It was felt that she would be better able to manage something like this physically because she would be able to move around. Ms. S. F. could not think of any further rehabilitative needs except an ongoing need for physiotherapy and massage therapy treatments.

[49] Dr. Miller noted that there were no cognitive impairments during the interview; that she was a good historian; that she was not distractible; that she expressed herself well, and readily understood questions; and that her rudimentary verbal skills suggested a modest intelligence, at least in the verbal sphere. The psychometric testing revealed wording reading at the grade 6.9 level, sentence comprehension at the grade 7.9 level, spelling at the grade 12.7 level, and math computation at the grade 6.3 level. Dr. Miller opined that the Appellant presented with a pain disorder associated with both psychological factors, chronic, and adjustment disorder with anxious mood. Dr. Miller felt that her pain was primarily psychogenic in origin, and emphasized that her disorder is in no way synonymous with symptom magnification; and that it is a very real disorder associated with genuine suffering and significant disablement. He described the Appellant as a stoical individual who was loath to acknowledge emotional upset on formal measures of psychological functioning.

[50] Dr. Miller’s prognosis was not good since it was now two years post-accident, and he recommended multi-disciplinary pain management including psychological counselling but cautioned that given “her very concrete and unsophisticated nature and her lack of psychological insight, she may not benefit greatly from pain management approaches that extend much beyond pharmacological, medical, or physical interventions.” The report concludes that the Appellant is limited to light or sedentary work as a result of her injuries; that she will certainly have to retrain in order to mitigate her losses because she has no previous experience in such work; and that vocational counselling is advised before she considers an alternative occupation or a program of study.

[51] Marnie Chisholm’s clinical note dated April 1, 2009 indicates fu re pain management. Pain persists, patient has appointment with pain management clinic in Hamilton. Patient not on any medications at present. Discussed if pain to be managed – will need to take medication to better manage. Suggested Tylenol #2 and requesting EMG study – referral to be sent to Dr. Chang in Sudbury.

[52] On May 21, 2009 Dr. Reznek, psychiatrist, reported to the lawyers for defendant in the Appellant’s tort claim that on examination the Appellant’s mood did not appear to be objectively depressed; that she was oriented for time, place and person; that she made no errors in short-term memory tasks; and that she scored 30 out of 30 on the Folstein Mini Mental State Examination. Based on his testing and examination, Dr. Reznek concluded that the Appellant is not suffering from a major depressive disorder; that she is not suffering from an adjustment disorder with depressed and/or anxious mood; that she is not suffering from post-traumatic stress disorder; that she did not suffer a mild traumatic brain injury in the accident; and that she is not suffering from pain disorder. Dr. Reznek opined that the Appellant is not prevented from performing any of her pre- accident activities of daily living, or from returning to any job for which she is suited by reason of education, training and experience, and which is within her physical capabilities.

[53] On May 21, 2009 Dr. Cameron, orthopaedic surgeon, reported to the lawyers for defendant in the Appellant’s tort claim that on examination the Appellant showed a full range of motion in the neck and back; that she showed evidence of symptom magnification with wide spread skin tenderness; and that she had sustained simple, uncomplicated strains from which recovery would long since have been expected. He did not believe that the Appellant has any medical restrictions, noted that calluses on her hand indicated that she “obviously is working”, and opined that she requires no treatment as a result of the orthopaedic injuries sustained in the accident. He concluded that the Appellant has not sustained a permanent, serious injury of physical nature as a result of the MVA.

[54] On June 18, 2009 John Haratsis, registered physiotherapist, reported to Ing Insurance that the physical examination failed to explain any underlying pathology to explain the Appellant’s presented symptomatology. Mr. Haratsis opined that the Appellant’s presented symptoms “appear to be self-imposed and [are] not considered to be impairment.”

[55] On February 2, 2010 Laura Demaiter, occupational therapist, and Dr. Kirsh, medical director, reported that the Appellant had been referred by her lawyer for an assessment at the Chedoke Hospital, chronic pain management unit. The Appellant was six months pregnant at the time of assessment. The report recommends various pain and anti-depressive medication trials after the pregnancy, and indicates that the most important treatment is an interdisciplinary pain program such as their own. The report notes that the Appellant has a complex mix of psychological and physical problems, which is best treated in an intensive multimodal environment.

[56] In a report to Intact Insurance Dr. Kirsh, medical director of the Chedoke Hospital, chronic pain management unit, reported that the Appellant was assessed on February 2, 2010 and that she was a suitable candidate for their chronic pain program. The Appellant was recommended for admission to the residential program.

[57] On March 5, 2010 Deborah Soligo reported to the Appellant’s lawyer that the Appellant is attempting to upgrade academically; that she began attending the PACE Program which is an adult learning centre in September or October, 2009; that she completed two course on February 24, 2010; that she attained a grade 11 math and grade 11 English credit; and that she attained 87% in math and 72% in English; and that she worked at her own pace and did the work at home. The Appellant was now taking two French courses, that her long term goal is attain her grade 12 diploma, and that she has an interest in bookkeeping and supply teaching. The report notes that in addition to her physical and sleep difficulties, the Appellant also continues to suffer with reduced memory and difficulty with concentration; that she constantly makes notes; that she indicated that her school work takes her a while; and that when she suffers from increased fatigue levels, she takes a break from school work for about two days. Ms. Soligo comments that the Appellant remains motivated despite her disability, that she is attending an adult learning centre, and that she paces herself and continues to have difficulty.

[58] Ms. Soligo opined, “At the very best, with reduced pain levels, she may be able to work part-time as a receptionist. She would be best suited to part-time work. She would require training on the job. However, this would only be possible with a reduction in her pain levels. Unfortunately, this is not the case at the present time.” She recommended that the Appellant pursue the chronic pain management program but was not optimistic that this would make a difference from a vocationally perspective, but was hopeful that this would improve her quality of life. Ms. Soligo concluded that it was her “firm opinion that the Appellant is unemployable at the present time.”

[59] On August 10, 2010 Louis Favretto reported to the Appellant’s lawyer that both sitting upright and sitting in a bent forward position is an aggravating factor causing increased pain in the Appellant’s neck and right shoulder. Mr. Favretto concluded that any job requiring sitting as a critical demand is beyond the Appellant’s functional limits.

[60] On August 24, 2010 Robin Richards, professor of surgery, reported to the Appellant’s lawyer that despite treatment, the Appellant has significant and severe ongoing symptomatology including neck pain, right shoulder pain, low back pain, right elbow pain, numbness affecting the ulnar aspect of her right hand, headaches, and inability to return to her preinjury level of activity. He considered the Appellant to have permanent limitations for impact activity, heavy lifting, overhead activity, and repetitive or forceful use of the right upper extremity against resistance. He opined that the Appellant is disabled for her previous job as a hairstylist, and that she has permanent occupational, recreational and household limitations as a result of her injury.

[61] On August 25, 2010 Dr. Ogilvie-Harris reported to the Appellant’s lawyer that he agreed that she should undergo an interdisciplinary pain management program. He opined that as a result of her ongoing pain and physical limitations, the Appellant does not have the physical capacity to return to her pre-accident employment; that this is the only employment for which she is reasonably suited at this time; and that following the chronic pain management program she will require further vocational rehabilitation and training.

[62] On September 6, 2010 Dr. Miller reported to the Appellant’s lawyer with respect to his re-examination of the Appellant on August 25, 2010. The Appellant reported that she had successfully obtained her grade 12 mathematics credit, and that she had tried to upgrade in French but found the course too difficult and dropped out. Dr. Miller noted, “At this time, given the way she is feeling and functioning, Ms. S. F. does not believe that she can return to the workforce due to physical limitations and lack of qualifications. She told me last time that she could not return to work as a hairdresser as she would not be able to manage the physical demands. Her status has not changed. When she did upgrading, she had the goal of achieving her high school diploma in order to become a secretary or a supply teacher. Currently, she is not sure whether this goal is realistic or attainable due to her difficulty with the French courses. To the best of her knowledge, she believes that she needs to obtain Grade 11 and Grade 12 French in order to achieve her diploma.”

[63] Dr. Miller opined that the Appellant continues to present with pain disorder associated with psychological factors, chronic, and an adjustment disorder with anxious mood, chronic, mild to moderate recovery. He agreed with Deborah Soligo that the Appellant is currently unemployable and, that unless she learns to better cope with her pain (an unlikely scenario almost four years, since she was injured), she is destined to remain that way permanently.

[64] On October 14, 2010 Dr. Blain, psychologist, reported to the Appellant’s lawyer that the Appellant has been her patient since April 20, 2009; that she has attended 20 sessions, the most recent occurring on October 13, 2010; and that in treatment they have been addressing the issues of depressive symptomatology and chronic pain. Dr. Blain noted that the Appellant has been compliant with treatment and diligent about attendance. Dr. Blain advised that a multi-model approach is most effective when addressing chronic pain and pain disorders, and that it would be most beneficial if the Appellant could continue in psychotherapy as well as a combination of massage therapy, physiotherapy, exercise, and acupuncture in order to best deal with her chronic pain.

[65] Dr. Blain’s office notes indicate that the Appellant attended for 13 psychological sessions between April 20, 2009 and September 13, 2010. The Appellant was being seen for depression, mood regulation, and pain management. The note dated February 4, 2010 indicates that the Appellant had just returned from her assessment at Chedoke-McMaster Pain clinic, that the timing seems problematic due to her pregnancy, that she had no word regarding start dates, and that she was very worried about this. The note dated February 26, 2010 indicates that she had received no word from McMaster regarding the pain program, and as the days progress towards her [May] due date she is becoming more and more stressed about the program. There are two sessions after L was born in May 2010. The last session on September 13, 2010 indicates that the Appellant was experiencing increased pain, likely due to lifting the baby more, that it distressed her that she is sometimes unable to carry or lift him, and that has to rely on her daughter to do so. They looked at the pain cycle again regarding mood, physical activity, heightened pain and tolerance.

Submissions

[66] Mr. Julien submitted that the Appellant qualifies for a disability pension because:

1. a) She is unable to be a predictable reliable employee because of her multiple medical conditions and limitations - she is significantly limited in her daily activities and ability to perform household tasks, and often will go two to three days a week without even leaving the house;
2. b) She has been compliant with recommended treatment modalities including physiotherapy, massage therapy, chiropractic, and psychological sessions;
3. c) The medical evidence including the evidence from her family doctor, psychologist, two treating physiotherapists, vocational assessments, and orthopaedic consultants confirm that she in not capable of performing any gainful employment;
4. d) She has attempted to mitigate by trying to upgrade her high school education and working for her husband at a very undemanding position which only involved collecting tickets, but was unsuccessful because of her pain, fatigue, memory, and concentration difficulties;
5. e) The Appellant was a credible and sincere witness, and it was clear she was experiencing great difficulty answering questions, remembering, and expressing herself.
6. f) The Tribunal should consider the Appellant’s personal characteristics including her limited education, lack of transferable skills, and her narrow work history, and consider the Appellant’s employment capacity in a “real world” context.

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

1. a) Although the Appellant may be unable to return to her previous work as a hairdresser, the evidence does not show any serious pathology or impairment which would  prevent her from performing suitable work within her limitations;
2. b) The diagnostic testing does not reveal any severe findings in the Appellant’s head or spine, and her treatment has been largely conservative in the form of massage, physiotherapy, and a single over the counter anti-inflammatory;
3. c) The Appellant was involved in a seemingly minor MVA in January 2007 in which the airbags did not deploy, there was no loss of consciousness, she did not require emergency care, and she exited the vehicle independently and drove from the scene;
4. d) There are numerous assessment reports from experts retained on behalf of the insurer that support the Appellant’s capacity to pursue alternative less demanding employment, and many of the reports relied upon by the Appellant are post-MQP and do not speak to her condition as of the MQP date;
5. e) The Appellant has not established a severe and prolonged disability in accordance with the CPP criteria as of her December 31, 2007 MQP, or continuously thereafter.

Analysis

[68] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before December 31, 2007.

Severe

[69] The statutory requirements to support a disability claim are defined in subsection 42(2) of the CPP Act which essentially says that, to be disabled, one must have a disability that is "severe" and "prolonged". A disability is "severe" if a person is incapable regularly of pursuing any substantially gainful occupation. A person must not only be unable to do their usual job, but also unable to do any job they might reasonably be expected to do. A disability is "prolonged" if it is likely to be long continued and of indefinite duration or likely to result in death.

Guiding Principles

[70] The following cases provided guidance and assistance to the Tribunal in determining the issues on this appeal.

[71] The burden of proof lies upon the Appellant to establish on the balance of probabilities that on or before December 31, 2007 she was disabled within the definition. The severity requirement must be assessed in a "real world" context: Villani v Canada (Attorney General, 2001 FCA 248. The Tribunal must consider factors such as a person's age, education level, language proficiency, and past work and life experiences when determining the "employability" of the person with regards to his or her disability.

[72] However, this does not mean that everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension.  Claimants still must be able to demonstrate that they suffer from a serious and prolonged disability that renders them incapable regularly of pursuing any substantially gainful occupation.  Medical evidence will still be needed as will evidence of employment efforts and possibilities.

[73] The Appellant must not only show a serious health problem, but where there is evidence of work capacity, the Appellant must establish that she has made efforts at obtaining and maintaining employment that were unsuccessful by reason of her health: Inclima v Canada (Attorney General), 2003 FCA 117. However, if there is no work capacity, there is no obligation to show efforts to pursue employment. The issue as to whether the Appellant has attempted to find alternative work or lacked motivation to do so is clearly a relevant consideration in determining whether the disability is “severe”: Klabouch v. Minister of Social Development 2008 FCA 33

[74] The determination of the severity of the Appellant’s disability is not premised upon her inability to perform her regular job, but rather on her inability to perform any work, i.e. “any substantially gainful occupation:” Canada (Minister of Human Resources Development) v. Scott, 2003 FCA 34. The statutory inquiry flowing from Section 42(2) is focused primarily upon the functional capacity of an individual and not upon the particular job market. A claimant for disability benefits under the Plan bears the onus of demonstrating functional impairment which both in reality prevents her from engaging in gainful employment but also an impairment which on a more objective level as well leads the Tribunal to the conclusion that virtually all substantially gainful employment is beyond the Appellant’s functional capabilities: Buckley v MHRD (November 29, 2001), CP 15265 (PAB).

[75] The resolution of the issue as to whether an Appellant may successfully invoke the definition of severe disability under the CPP criteria based on chronic pain syndrome, is difficult because its resolution depends upon the view the Tribunal ultimately takes of the genuineness of what are often strictly subjective symptoms. It is, however, not sufficient for chronic pain syndrome to be found to exist; the pain must be such as to prevent the sufferer from regularly pursuing a substantially gainful occupation. It is also incumbent upon a person who has applied for benefits, to show that treatment has been sought and that efforts have been made to cope with the pain: MNH v. Densmore (June 2, 1993), CP 2389 (PAB).

Application of Guiding Principles

[76] Although there is some conflict between the assessment reports, the Tribunal is satisfied that the Appellant lacks the capacity to return to her previous employment as a hairdresser, or to any of her previous physically demanding jobs such as being a chambermaid, waitress, or greenhouse labourer. The Tribunal must, however, determine whether the Appellant retained as of the MQP date the residual capacity to pursue alternative lighter work, and if so, whether she has failed to pursue reasonable efforts to do so.

[77] In determining this issue, the Tribunal has been mindful that it should focus on the December 31, 2007 MQP date (which was more than seven years prior to the hearing), and that the Appellant was only 36 years old at that time. It is understandably very difficult for the Appellant to recall her actual conditions and limitations as of that date and, accordingly, the Tribunal placed particular reliance and emphasis on the objective medical evidence and reports which spoke to the Appellant’s condition as of that date.

[78] Based on its review of the totality of the evidence, the Tribunal has determined that although the Appellant suffers from chronic pain she retained the capacity to work at light moderate levels and that she has made minimal efforts to pursue alternative employment suitable to her condition. She has, accordingly, failed to meet the test set out in Inclima, supra.

[79] In making this determination the Tribunal has given particular consideration to the following:

• - The Appellant’s age, ability to upgrade her work and academic skills, and her varied work history which although physically demanding suggests significant workplace adaptability. Although the Appellant was not able to return to her employment as a hairdresser, she has acknowledged that she did not make any efforts to pursue alternative suitable employment, until the attempt to work for her husband in 2014 which was close to seven years after the MQP.
• - Although the Appellant left school after grade 10, she was able to upgrade her skills and successfully completed a hairdressing course. Deborah Soligo’s March 5, 2010 report indicates that the Appellant had completed two courses in February 2010, and that the she had attained a grade 11 math and grade 11 English credit; and that she attained 87% in math and 72% in English. Dr. Miller’s September 6, 2010 report indicates that the Appellant had successfully obtained her grade 12 mathematics credit, and that she had tried to upgrade in French but found the course too difficult and dropped out. Although she did not obtain her degree due to her difficulty with the French courses, her results support a significant ability to concentrate and focus in upgrading courses which she took more than two years after the MQP.
• - Dr. Miller’s January 23, 2009 report (which was a year after the MQP and prepared for the Appellant’s lawyer) depicts a reasonably active though limited lifestyle, and notes that the Appellant had been involved in a relationship for the last 1 ½ years; and that they go out to dinner and to the movies, and visit with family. The report noted that there were no cognitive impairments during the interview; that the Appellant was a good historian; that she was not distractible; that she expressed herself well, and readily understood questions; and that her rudimentary verbal skills suggested a modest intelligence, at least in the verbal sphere.
• - Dr. Reznek’s May 21, 2009 report (which was 17 months after the MQP and prepared for the lawyers representing the defendant in the tort claim) indicates that she was oriented for time, place and person; that she made no errors in short-term memory tasks; and that she scored 30 out of 30 on the Folstein Mini Mental State Examination.
• - Although the reports from the treating and assessing physicians support that the Appellant could not return to any of her previous occupations, the preponderance of the reports (especially those during the 2007 to 2008 period which surrounds the MQP) suggest that she has the capacity to pursue alternative employment.
• - Although the reports confirm that the Appellant has been motivated and compliant with the treatment modalities that she has pursued, she did not attend the recommended interdisciplinary residential chronic pain program at Chedokee Hospital where she could be treated in an intensive multi-modal environment. Although it is understandable that the Appellant was reluctant to pursue this program at a late stage in her pregnancy, her son is now close to five years old and she has had ample time to pursue this program which was recommended by many of the medical practitioners.
• - There is no evidence of any psychotherapy after 2010, and although the Appellant’s oral evidence confirms continuing chiropractic and massage therapy, there is no suggestion of the Appellant ever having pursued “an intensive mutli-modal environment” that the Chedokee Hospital pain management program provides.
• - The Tribunal also noted that there are no reports in the hearing file detailing ongoing treatment, consultations, and/or investigations after the October 13, 2011 report from Dr. Chisholm and Marnie Chisholm, nurse practitioner, which accompanied the CPP application. Although this report suggests that the Appellant is unable to return to her previous employment due to chronic pain in her neck, shoulder, and lower back, it does not indicate that she is precluded from all forms of gainful employment.

[80] Although the Tribunal recognizes that the Appellant is suffering hardship by reason of her condition, she has the burden of proof and has failed to establish, on the balance of probabilities, that the she was severely disabled in accordance with the CPP criteria as the MQP.

Prolonged

[81] Having found that the Appellant’s disability is not severe, it is not necessary for the Tribunal to make a determination on the prolonged criteria.

Conclusion

[82] The appeal is dismissed.