On this page
Persons in attendance
- M. T.: the Appellant
- Harvey S. Consky: the Appellant’s legal representative
- Emanuel Mensah: Twi interpreter
- Anthony Windwar: law student (observer)
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 May 11, 2010. 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). GT1-30
[3] The hearing of this appeal was scheduled to be by video conference for the reasons given in the Notice of Hearing dated June 26, 2014, namely, i) the information in the file, including the nature of gaps or need for clarification in the information; ii) the fact that the Appellant is represented; iii) the fact that there is availability of videoconference in the area where the Appellant resides; and iv) the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit
[4] The morning of the hearing, the Tribunal computer network was down. The Member attended the place of hearing and conducted an in-person hearing.
Preliminary Issues
[5] On February 4, 2015, the Appellant’s lawyer (the “Lawyer”) sent a written submission with medical documentary evidence to the Tribunal by express post (GT-5). A copy was sent to the Respondent for its submissions on admissibility and content. Given the expiry of the Filing Period on January 9, 2015, the Respondent took the position it would not review the contents of GT-5.
[6] At the hearing, the Lawyer explained the reason for the late filing. Another lawyer in the firm had carriage of the file. The other lawyer left the firm. The Lawyer assumed carriage of the file, met with the Appellant and discovered that not all documents that should have been filed by the Filing Period deadline had, in fact, been filed. The Lawyer promptly filed the documents (GT-5) with the Tribunal.
[7] The Tribunal is satisfied that once the Lawyer assumed carriage of the file and discovered that not all relevant documents had been filed with the Tribunal, he immediately took steps to do so. The Tribunal is further satisfied that the documents contained in GT-5 are relevant to the Appellant’s appeal and that their relevance outweighs any prejudice to the Respondent arising from the late filing. In any event, the Respondent was provided with an opportunity to provide submissions concerning the documentation. Therefore, the Tribunal exercised its discretion to admit the late filed documents.
[8] The Lawyer further requested to admit a pharmacy printout of medications the Appellant has been prescribed between January 18, 2009 and the present time. The Tribunal is satisfied that the printout is relevant to the Appellant’s appeal and accepted the document into evidence. After the hearing, the Tribunal sent a copy to the Respondent for its record (GT-9)
The law
[9] 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.
[10] 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).
[11] 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.
[12] 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
[13] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 2010.
[14] The Tribunal will specifically address below the Appellant’s position that she qualifies to receive CPP disability benefits for the period between January 2009 and January 2012.
Evidence
Documents
[15] In her Questionnaire for CPP Disability Benefits, the Appellant states that she stopped working on January 16, 2009 after a slip and fall (the “fall”) in which she fractured her right shoulder and injured her back. As a result, she is unable to lift her right hand beyond her shoulder without pain and is limited in sitting (45 minutes), standing (30 minutes at a stretch), walking (10-20 minutes), lifting (5 lbs) , reaching (nothing above shoulder), bending (frequent bending results in back pain) and carrying. She takes Tylenol 2, Ibuprofen, Mobicox and Baclofen, attends physiotherapy, and plans to attend a chronic pain management program. The Appellant was born in 1957 and completed Grade 12. She worked at a fitness club between August 1992 and January 16, 2009 where her duties involving checking the safety of fitness equipment.
[16] In the CPP Medical Report dated April 23, 2010, Dr. Akotoye, the family physician, diagnosed a fracture of the right shoulder –glenoid rim, which limits the Appellant’s ability to use her right arm/shoulder. Dr. Akotoye prescribed a lotion for pain (Penssaid), Mobicox and Tylenol 2 and stated that the Appellant was attending physiotherapy but with limited progress. Dr. Akotoye described the prognosis as guarded with an increased risk of developing traumatic osteoarthritis.
[17] As noted under the Preliminary Issue above, on February 4, 2015, the Lawyer filed additional documents with the Tribunal. They consisted of a submission and supporting documents. The supporting documents included a copy of the Humber River hospital records following the Appellant’s fall and injury involving her right arm on January 17, 2009. The diagnosis was: fracture of the glenoid. She was discharged the following day with pain medication and a shoulder immobilizer.
[18] A January 17, 2009 medical image of the right shoulder revealed probable fracture of the right glenoid minimally displaced. A January 19, 2009 CT confirmed a mildly displaced glenoid fracture. A January 21, 2009 medical image of the right shoulder/humerus and elbow was normal.
[19] On January 29, 2009 Dr. Halman, orthopedic surgeon, described the right arm as neurologically intact with limited range of motion of the glenohumeral joint. The Appellant reported pain at the extremes of motion. Dr. Halman did not believe that surgery would improve her outcome. He suggested she use a sling for pain control and stated he would have his physiotherapist review a home exercise program with her.
[20] On February 3, 2009, the Appellant saw Dr. Raffi for an initial consultation and started physiotherapy on February 9, 2009. He treated her between February 9, 2009 and July 31, 2012. The Appellant filed a copy of Dr. Raffi’s clinical notes and records at GT5-64.
[21] A February 26, 2009 medical image revealed further healing of a minimally displaced fracture of the glenoid joint. The same day, Dr. Halman saw the Appellant who was complaining of ongoing pain and limited range of motion, but no feeling of instability. Dr. Halman confirmed limited range of motion and stated: “I anticipate difficulty with work above chest level, heavy lifting, or repetitive tasks with the affected arm”.
[22] An April 23, 2009 medical image confirmed right shoulder healing fracture through the glenoid with satisfactory position. The same day, Dr. Halman saw the Appellant. She still had ongoing pain but no dislocation or apprehension. She had forward elevation to 90 degrees, external rotation to 60 degrees and internal rotation of the lateral thigh. Dr. Halman stated: “At this point, I have suggested that she continue with her exercises to progress without restriction. In regards to her workup, I have suggested that she should progress her work as tolerated”.
[23] An October 16, 2009 Bilateral Para-Sacral Area Ultrasound failed to detect any abnormality.
[24] On January 28, 2010, Dr. Raffi, chiropractor, reported to the Appellant’s disability insurer on his treatment of the Appellant, whom he first saw for her injuries on February 3, 2009. Dr. Raffi diagnosed: i) adhesive capsulitis, right shoulder, ii) lumbar sprain/strain with sacroiliac syndrome; iii) biomechanical joint dysfunction – due to spinal trauma - abnormal movement and alignment of vertebral joints; iv) post traumatic myofascial pain syndrome; v) cervical radiculopathy; and vi) lumbar sprain/strain injury. He stated that the Appellant’s subjective complaint of lower back/neck symptoms decreased 40%, her tolerance for standing straight increased 40%, her lower back symptoms decreased and range of lumbar motion had improved, although she continued to have difficulty walking and sitting for long periods of time. Her headaches and vertigo complaints were less frequent. According to Dr. Raffi, the prognosis for the right shoulder was guarded with contraindications to the Appellant returning to work due to unresolved adhesive capsulitis. On February 15, 2011, Dr. Raffi reported that the Appellant remained under his care and was suffering from chronic pain syndrome. Although she had responded to therapy with limited success, in his opinion, she would be unable to return to her occupation or any occupation “at this time.”
[25] A February 19, 2010 right shoulder medical image confirmed mild degenerative changes at the right shoulder. A March 5, 2010 Bilateral Shoulder Ultrasound was normal.
[26] On February 20, 2010, Dr. Akotoye diagnosed fracture of the right shoulder glenoid cavity; persistent pain and tenderness; stiffness of the right shoulder movement, secondary to adhesive capsulitis of the right shoulder; chronic pain of the right shoulder. He indicated he saw the Appellant about once monthly. She was also pursuing home exercise and physiotherapy/chiropractic at Dr. Raffi’s office. She was prescribed Tylenol 2, Ibuprofen, Mobicox and Baclofen. He stated she was progressing with chiropractic but was still moderately limited in her range of shoulder movements. He indicated she was limited in her ability to lift with her right shoulder. He noted that Dr. Raffi referred her to pain management with Dr. Shahnavaz, who was providing nerve block injections. He indicated he had not yet received any reports and was unable to comment specifically on the impact of pain management and stated: “However in general and bearing in mind the chronicity of her pain, I believe the impact of pain management will assist positively on her recovery.” According to Dr. Akotoye, the Appellant’s restrictions involved no heavy lifting, no lifting beyond 5 lbs., and no pushing or pulling with her right shoulder.
[27] On July 5, 2010, Dr. Lakhani, Toronto Poly Clinic, saw the Appellant. He indicated her current complaints were headaches, neck pain, shoulder pain, mid back pain, lower back pain and sleep problems. On examination, he found she had decreased range of motion of the right shoulder and tenderness on the right lumbar spine. He diagnosed: fracture of the shoulder glenoid cavity and chronic right shoulder pain. The plan consisted of further investigation including an MRI of the right shoulder and physical therapy with Dr. Raffi. Dr. Lakhani indicated the Appellant would continue to be followed until the pain syndrome was better managed.
[28] On February 15, 2011, Dr. Raffi prepared a consultation note. He wrote: “(The Appellant) is still under my care and is suffering from chronic pain syndrome. She sustained a fracture on the right shoulder, limited range of motion, and she sustained injuries to her cervical spine as well.” He further stated: “Even though she responded to therapy somewhat with limited success, she is unable to return to her own occupation or any occupation at this time, in my opinion”.
[29] On April 14, 2011, Dr. Akotoye reported to the Respondent. He stated that subsequent to the fracture of her right glenoid, the Appellant went on to develop: i) persistent right shoulder stiffness secondary to adhesive capsulitis of the right shoulder, moderate limitation of the right shoulders, back and neck; ii) chronic back pain: 50% limitation of all back movements; and iii) chronic pain. According to Dr. Akotoye, as a result of the pain, the Appellant was unable to push, pull or lift objects and was unable to walk beyond 1-2 blocks without resting. Pain also limited her ability to bend at the back. Dr. Akotoye recommended continued physiotherapy/chiropractic and pain management at a Multidisciplinary Pain Clinic.
[30] On February 8, 2014, Dr. Akotoye reported that the Appellant had a slip and fall on January 17, 2009. She attended at his clinic on January 21, 2009 complaining of pain in the right arm, upper and lower back pains. She was tender over the right shoulder joint line and right shoulder movements were severely limited in all planes. X-rays revealed a mildly displaced glenoid fracture and a CT demonstrated an anterioinferior glenoid fracture. Dr. Akotoye diagnosed a right shoulder fracture involving the right glenoid and myoligamentous injury of the upper and lower back. He further indicated the Appellant attended at his clinic on February 4, 2009 complaining of right shoulder pain, upper and lower back pain and insomnia. She was tender along the right shoulder joint line with minimal movement in the right shoulder. She was also tender over the thoracic and lumbar spine and para spinal areas. She was also anxious with depressed mood. He prescribed Tylenol 3. According to Dr. Akotoye, between March 2009 and January 2014, he saw the Appellant once or twice per month. She complained of 1. Right shoulder pain – persistent and radiating into right arm; 2. Right shoulder and right arm numbness; 3. Upper back pains; 4. Lower back pains; 5. Headache; 6. Insomnia; and 7. Anxiety symptoms. On examination, she was noted to be tender along the right shoulder joint line with moderate to severely limited shoulder movements in all planes. She was also tender over the thoracic and lumbar spines and along the para spinal areas. She had moderate limitation of her back movements in all planes. She also had insomnia, anxiety and depressed mood. Dr. Akotoye diagnosed: 1. Fracture of the right shoulder joint- glenoid; 2. Adhesive capsulitis; 3. Upper back strain; 4. lower back strain; 5. Chronic pain; 6. Headache; 7. Insomnia and 8. Adjustment Disorder. He prescribed Vimovo, Celebrex, Mobicox and Tylenol 2. According to Dr. Akotoye, on February 5, 2014, the Appellant continued to complain of 1. Right shoulder pain, 2. Right shoulder swelling and pain radiating into the right arm; 3. Lower back pain; 4. Headache; 5. Insomnia; and 6. Depressed mood. He further stated he found her to be anxious and have a depressed mood. She was tender along the right shoulder joint line. She still had mild to moderate limitation of the right shoulder joint line movements in all planes and tenderness over the thoracic and lumbar spine and along the para spinal tissues of the upper and lower back. He diagnosed her as currently having: 1. Healed fracture of the right glenoid cavity with mild to moderate limitation of shoulder movements; 2. Myoligamentous injury of the upper and lower back; 3. Chronic pain; 4. Headache; 5. Adjustment disorder-mixed anxiety/depression; and 6. Secondary osteoarthritis of the right shoulder due to the fracture. He stated her current limitations involved: 1. Reduced ability to lift heavier items; and 2. Unable to tighten or untwist bolts and nuts such as found on her fitness machines at work; Based on his assessment, he stated: “It is my opinion that she is not able to return to her pre accident employment duties as a service mechanic due to the limitation of her right shoulder as a result of the complications of her shoulder injury.”
Oral Testimony
[31] The Appellant had a slip and fall in 2009. She fractured her right shoulder. She also had complications with her hand, wrist, headaches and problems with her neck.
[32] She did not return to work between the fall and January 2012 due to severe pain. She had problems with her hand, wrist, neck, headaches and back pain.
[33] At the time of the accident she was working at Goodlife as a maintenance mechanic fixing machines. It was heavy work. She would have to take out screws and lift machines, some of which were heavy. The job also involved bending.
[34] She was born in Ghana. She came to Canada in April 1992. She completed Grade 12 in Ghana. She worked in Ghana for the Ministry of Agriculture performing office work. She worked in Twi and English.
[35] After coming to Canada, she started to work for Sports Club of Canada in August 1992. She was a locker room attendant. She was eventually promoted to maintenance mechanic in or around 1998. Goodlife bought out Sports Club of Canada and she continued to perform this work for Goodlife.
[36] She never performed office work or sales jobs in Canada.
[37] She took a course as a PSW but never worked as a PSW in Ontario. At or around the time of the accident, she was looking for a PSW job to supplement her work at Goodlife. She does not believe she could work as a PSW worker at this point. The job involves lifting people, which she cannot perform.
[38] She returned to work in 2012 after being off 3 years. During the period she was off work, she was in pain and took a lot of medication. Sometimes, she took sleeping pills at bedtime. She also took medication for her bodily pain. Dr. Lakhani, pain specialist, treated her for pain and gave her injections, which helped.
[39] She also had psychological problems. She became afraid whenever she saw ice or freezing rain.
[40] In January 2012, she returned to modified work at Goodlife 5 hours daily. She would clean lockers and fold and clean towels. Sometimes she finds the work difficult however she manages. She could not have performed this work earlier than January 2012 on account of her serious pain. Since she returned to work, she has been able to manage due to pain medication. She does not believe she could have performed the moderate job duties prior to January 2012.
[41] She does not believe she could have performed any other job before January 2012. If the job involved a little bit of sitting and standing, she could do it. However, if it required prolonged sitting and standing, she could not do it.
[42] After the accident and prior to January 2012, the best period of time she could sit was 10 minutes. She would then have to stand and stretch.
[43] The pain in her shoulder has improved a little.
[44] In response to questions from the Tribunal, the Appellant clarified she took the PSW course in or around 2006. It was offered through a private college and lasted seven months. It was offered in English.
[45] In December 2010, she could sit on average for five to six minutes and would then have to stand. However, she did not time herself.
[46] Dr. Lakhani injected her shoulder, neck, waist and lower back depending on where she had severe pain at the time.
[47] In December 2010, she lived in an apartment with her common law partner. She initially indicated she was living with her adult child but later clarified that she resided with her common law partner. She moved in with her common law partner about two years prior to the slip and fall.
[48] In December 2010, she needed help to dress herself due to difficulty raising her arm. A friend would help her.
[49] In December 2010, she could shower and bathe independently.
[50] In December 2010, she could make her own meals.
[51] She had some assistance with housecleaning but used her left hand to do the cleaning. Her common law partner also helped out.
[52] In December 2010, she did not do grocery shopping. Her common law partner did it. Sometimes her friends would help out.
[53] During a typical day in 2010, she would go to doctors’ appointments, attend therapy and perform home exercise. She did not do any travelling in 2009 or 2010.
Submissions
[54] The Appellant submitted that she qualifies for a disability pension for a closed period of time because:
- a) At the time of the fall, she was employed as a maintenance mechanic for Good Life Fitness. As a result of her right shoulder facture sustained in the fall, she was not able to return to her former occupation of maintenance mechanic or engage in any other remunerative employment until January 2012.
- b) In spite of extensive physiotherapy treatment and treatment with injections, she remains limited in the use of her right shoulder. She was able to return to modified work as a “cleaner” for Good Life Fitness on January 23, 2012 and continues to work in this capacity.
- c) The medical record supports a finding she sustained serious and prolonged injuries, especially a permanent injury to her right shoulder. She was disabled from working in her pre-accident job or any type of work for three years between January 2009 and January 2012.
- d) She returned to a part-time job on modified duties at Goodlife in January 2012 extended to full-time (still modified duties) on April 8, 2013. Her job duties include light cleaning, vacuuming, and cleaning lockers.
- e) She qualifies to receive CPP disability benefits for the period between January 2009 and January 2012 during which period she was unable to engage in gainful work.
[55] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- a) The medical imaging of the right shoulder reveals a healing fracture and satisfactory positioning;
- b) General treatment of the condition does not require invasive treatment;
- c) Although the Appellant may not be able to do her usual job, the information does not support a severe physical condition which would preclude the Appellant from all types of work.
Analysis
[56] The Appellant must prove on a balance of probabilities that she qualified to receive CPP disability benefits for the period between January 2009 and January 2012 during which period she contends she was unable to engage in gainful work.
[57] The Tribunal is persuaded based on the medical record and Appellant’s testimony that the Appellant was unable to perform her pre-accident physical work on or before the MQP. Given restrictions of movement in the upper right limb, she would not be able to perform this work or any physical work requiring overhead movement, carrying and lifting. This would include not only her previous job but any work of a physical nature. Dr. Halman perhaps best summed it up at or around the time of the accident when stating that he anticipated difficulty with any work above chest level, heavy lifting, or repetitive tasks with the affected arm.
[58] The question arises whether the Appellant was capable of some alternative type of work including sedentary or lighter work within her restrictions.
[59] In response to questions from the Lawyer, the Appellant indicated that between the January 2009 fall and January 2012 when she returned to modified work, the best or longest period of time she could sit was for 10 minutes. She would then have to stand and stretch. She further clarified on questioning by the Tribunal that in December 2010, she could sit between five to six minutes and would then have to stand.
[60] The Appellant’s evidence that she could only sit five to six minutes in December 2010 is problematic. The medical record does not indicate that the Appellant’s low back condition significantly deteriorated between late April 2010 when she reported in her Questionnaire she could sit for 45 minutes and December 2010, when she testified at the hearing she could only sit for 5-6 minutes. Rather, the medical record suggests an improvement in low back pain. For example, in his January 28, 2010 report, Dr. Raffi, chiropractor, reported that the Appellant’s subjective complaint of lower back and neck symptoms had decreased and that the Appellant’s lower back symptoms had decreased and range of motion in the lumbar spine had improved, although she continued to have difficulty with walking and sitting for long periods of time.
[61] Given paucity in the medical record chronicling a significant deterioration in back pain and sitting capacity between April 2010 and December 2010, the Tribunal is not satisfied that the Appellant’s oral testimony that she could only sit for 5-6 minutes in December 2010 is a reliable recollection of her capacity to sit at that time. As between her oral testimony given approximately four years after the MQP and her Questionnaire completed approximately 8 months before December 2010, the Tribunal prefers the evidence she provided in the Questionnaire and finds that the Appellant’s sitting capacity in December 2010 more likely than not fell in the range of 45 minutes.
[62] The Tribunal has also considered the medical record and what it has to say (or not say) about the Appellant’s sitting capacity and its impact on her employability.
[63] The Tribunal notes that Dr. Akotoye, the family physician, did not refer to or mention the low back condition or restrictions against prolonged sitting in the April 2010 CPP Medical Report. Although Dr. Raffi commented in his January 28, 2010 report that the lower back pain was aggravated by sitting for longer periods of time, he only specified “medical contraindications to her returning to work at this time due to unresolved adhesive capsulitis.” Also, he did not specify a time limitation on sitting, whereas he indicated standing straight was limited to 10 minutes.
[64] In his February 20, 2010 report, Dr. Akotoye diagnosed fracture of the right shoulder glenoid cavity, persistent pain/tenderness of the right shoulder movement, and chronic pain of the right shoulder. He indicated current restrictions of 1. No heavy lifting/ No lifting beyond 5 lbs; and 2. No pushing or pulling with her right shoulder. He did not mention the lower back or restrictions involving sitting. Although Dr. Raffi stated on February 15, 2011 that the Appellant was unable to return to her occupation or any other occupation “at this time”, in the body of the report he referred only to the right shoulder fracture, limited range of motion and injuries to the cervical spine but did not identify low back pain or restrictions in prolonged sitting. Also, although Dr. Akotoye reported to the Respondent on April 14, 2011 that the Appellant had chronic back pain with 50% limitation of all back movements, he stated that as a result of her right shoulder pain, back and neck pain, she was unable to push, pull or lift objects, walk beyond 1-2 blocks without resting or bend at the back. He did not identify any restrictions involving prolonged sitting.
[65] Although the Pain Clinic Report from July 5, 2010 verified mid and lower back pain with limitations on prolonged sitting, under the heading “Sitting Posture”, the report author indicated the Appellant did not have to “change position to find a comfortable position”. The Tribunal finds this report to be inconsistent with the Appellant’s oral testimony. It indicates she had limitations on prolonged sitting. The report did not identify a limited sitting capacity of only 5-6 minutes.
[66] The Tribunal also notes that in his February 8, 2014 report, Dr. Akotoye state that prior to her slip and fall injury, the Appellant could not return to her previous job at Good Life Fitness as an equipment service mechanic because she could not use her right arm/shoulder to carry her toolbox, or carry out her job duties requiring her to tighten and loosen bolts and nuts. Although he referred to tenderness over the thoracic and lumbar spine and along the paraspinal tissues of the upper and lower back, and the fact she was anxious and depressed, he did not state that the Appellant could not return to any other work due to these conditions.
[67] The Tribunal concludes that the Appellant had residual capacity to pursue sedentary work and/or retraining at the MQP consisting of sitting for up to 45 minutes at a time before she would have to get up and stretch.
[68] 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.
[69] The Tribunal has also considered the Appellant’s real-world factors. Given her Grade 12 education, proficiency in English (she had recently completed a PSW course in English at a private college), and relatively young age, i.e., 52 at the date of application, the Tribunal believes the Appellant had the aptitude and ability to pursue retraining for sedentary work within her limitations.
[70] In conclusion on this issue, the Tribunal is not satisfied that the Appellant’s back condition was sufficiently disabling such that it rendered her incapable regularly of pursuing any substantially gainful occupation including sedentary or lighter work or from pursuing retraining prior to the MQP.
[71] According to the decision of Inclima v. Canada (Attorney General), 2003 FCA 117 (CanLII) at paragraph [3]:
Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.”
[72] Given the Tribunal’s conclusion that the Appellant possessed residual capacity to perform sedentary or lighter work or pursue retraining for the reasons as stated above, the Appellant has not satisfied the Tribunal that she attempted to do so or demonstrated that her attempts failed because of her health condition.
[73] The Tribunal has also considered the Appellant’s other listed conditions including headaches, insomnia, anxiety and depression. Although the medical reports refer to headaches, the Tribunal notes that in his January 28, 2010 report almost 12 months prior to the MQP, Dr. Raffi reported that the Appellant’s headaches and vertigo complaints were less frequent.
[74] In his February 8, 2014 report summarizing his involvement in the Appellant’s care, Dr. Akotoye indicated that the Appellant had complained of insomnia, being anxious and depressed. He diagnosed adjustment disorder. Significantly, he indicated that between March 11, 2009 and January 18, 2014 he prescribed Vimovo, Celebrex, Mobicox and Tylenol 2. He did not indicate he ever diagnosed medication for anxiety or depression or referred the Appellant to a psychiatrist for treatment. The Tribunal has reviewed the Appellant’s pharmacy printout. It does not indicate she was prescribed antidepressant or anti-anxiety medication prior to the MQP. The Tribunal is not satisfied that these conditions were so significantly disabling that they individually or cumulatively rendered the Appellant disabled as defined in the CPP.
[75] The Tribunal is also not satisfied that the Appellant’s disability was prolonged on or before the MQP. The Appellant was able to return to modified duties in January 2012 on a part-time basis. Her modified work was increased to full-time modified duties as of April 8, 2013. The Respondent adduced evidence that the Appellant had additional earnings of $14,239 in 2012 subsequent to the MQP.
[76] The Appellant contends she is entitled to CPP Disability benefits for a closed period between January 2009 when she stopped working and January 2012 when she first returned to part-time work.
[77] The Tribunal is not satisfied that closed benefits are available to the Appellant. Although there is a line of cases developed under decisions of the Pension Appeals Board (PAB) which recognized payment for closed periods of time where the medical opinion prior to the prescribed treatment did not clearly indicate the likelihood of a claimant’s recovery and their subsequent ability to work, the Tribunal notes that PAB decisions are not binding on it.
[78] In any event, the Tribunal concludes that Federal Court of Appeal jurisprudence has foreclosed payment for closed period benefits.
[79] In the case of Canada (Minister of Human Resources Development) v. Henderson, 2005 FCA 309 (CanLII), the Court found that the PAB erred in concluding that the Appellant’s disability was prolonged from the time he quit work in 1997 until he recovered from knee surgery in October 2000. The Court noted that under the CPP, a disability cannot be prolonged unless determined to be of indefinite duration. It stated: “Since, prior to the operation, the medical opinion accepted by the Board was that surgery would improve Mr. Henderson’s condition and enable him to work, the Board was wrong to find that the disability was “prolonged.” The Court indicated that Mr. Henderson’s counsel drew its attention to previous Board decisions in which it found claimants’ disabilities to be prolonged prior to their recovery from treatment and awarded pensions for “closed period” of time. The Board stated:
[10] However, in our view, these "closed period" decisions would appear to be distinguishable from the present case. The medical opinion prior to the prescribed treatment about the likelihood of the claimants' recovery and of their subsequent ability to work was much less clear in those cases than that accepted in Mr. Henderson's case. This point has been made by the Board in other cases, including Kinney v. Minister of Social Development (CP 21314, February 24, 2005) and Tibbo v. Minister of Social Development (CP 21704, August 23, 2004)
[11] The restrictive language of section 42 indicates that the purpose of the Plan is to provide a pension to those who are disabled from working on a long-term basis, not to tide claimants over a temporary period where a medical condition prevents them from working.
[80] Although the Court distinguished the facts in PAB closed period decisions from the case before it, which suggests the Court countenanced “closed period” benefits where applicable, the Tribunal finds that the Court’s pronouncement in paragraph 11 above was broad and unqualified. It indicates the Court ruled that payment for closed periods of time is not available under the CPP.
[81] In the case of Litke v. Canada (Human Resources and Social Development), 2008, FCA 366 (CanLII), the Court considered its earlier ruling in Henderson. The Court noted that the PAB found Ms. Litke’s disability was not prolonged because it was clearly of a definite duration. According to the Court, the evidence before the PAB suggested she was capable of returning to work following her cancer treatment, notwithstanding her other health issues. Ms. Litke did not take issue with that finding but contended that disability pensions should be available in cases of temporary disability. The Court stated that she was asking the Court to revisit its decision in Henderson in which Justice Evans stated that the purpose of the Plan is to provide a pension where a disability forces a claimant to leave the workforce on a long-term basis, and “not to tide claimants over a temporary period where a medical condition prevents them from working” (at para 11)”. The Court stated:
There are no circumstances here that would justify this court reversing its own precedent. The use of the word “indefinite” in subparagraph 42(2)(a)(ii) of the Plan makes clear that Parliament did not intend that disability pensions would be available in cases of temporary disability. The fact that a House of Commons Standing Committee recommended changes to this rule is not of great weight, unless of course, their suggestions are enacted. Similarly, a Physician’s Guide distributed by the government department is of little value in offsetting the statutory language and the jurisprudence of this Court.
While we’re not without sympathy for the applicant’s plight, the change in the law she is requesting must come from Parliament, not this Court.
[82] Although the Tribunal is alert to the fact that the factual circumstances in Ms. Litke’s case did not bring it within the “closed period” scenario contemplated in PAB decisions, the Court did not identify this factor as a basis to uphold the ratio in Henderson and deny Ms. Litke’s appeal. By stating there were no circumstances that would justify it reversing its own precedent, the Court asserted in broad and unqualified terms that the use of the word “indefinite” made it clear that Parliament did not intend that disability pensions would be available in cases of temporary disability. The Court did not carve out an exception for situations where the claimant’s recovery and subsequent ability to work was uncertain prior to their recovery from treatment.
[83] In conclusion on this point, the Tribunal finds that “closed period” benefits are not available to tide the Appellant over for the temporary period of time during which her medical condition prevented her from working.
[84] If the Tribunal is in error in concluding that “closed period” benefits are not available under the CPP in the limited scenario identified in PAB decisions, in any event, the Tribunal is not satisfied that the Appellant’s circumstances fall within that category.
[85] The Tribunal is not satisfied, on balance, that the Appellant’s eventual capacity to return to work was uncertain at or around the MQP.
[86] The Tribunal finds that the medical record supports a finding that the Appellant would eventually recover and be able to return to work.
[87] On February 26, 2009, Dr. Halman assessed the Appellant and stated he anticipated difficulty with work above chest level, heavy lifting, or repetitive tasks with the affected arm. Implicit in his comment is anticipation of a return to work not involving these activities.
[88] Although Dr. Raffi stated on January 28, 2010 that the prognosis for the right shoulder was guarded with contraindications to the Appellant returning to work due to unresolved adhesive capsulitis, on February 15, 2011 shortly after the MQP, he stated that the Appellant had responded to therapy with limited success and that in his opinion, she would be unable to return to her occupation or any occupation “at this time”. The Tribunal finds that Dr. Raffi’s reference to “at this time” signifies that progress was being made and that at some point in the future, the Appellant would be able to return to work. The Tribunal also notes that earlier on, in his February 20, 2010 report, Dr. Akotoye indicated he believed the impact of pain management would assist positively on the Appellant’s recovery. This clearly signifies that recovery was contemplated by Dr. Akotoye.
[89] In conclusion on this point, the Tribunal finds that recovery and a return to work was contemplated in the medical reports prior to and/or at around the time of the MQP. With the benefit of pain management, the Appellant actually did recover to the point she was able to return to modified duties in 2012.
[90] For the reasons set out above, the Tribunal is not satisfied that the Appellant’s disability was severe or prolonged on or before the MQP. For greater certainty, she was not entitled to receive closed period benefits during the period she was off work between January 2009 and January 2012.
Conclusion
[91] The appeal is dismissed.