Canada Pension Plan (CPP) disability

Reasons and decision

Persons in attendance

L. P.: Appellant

Adam Moras: Appellant’s representative

F. P.: Appellant’s husband

Introduction

[1] The Appellant’s application for a CPP disability pension was date stamped by the Respondent on June 1, 2011. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals (OCRT) and this appeal was transferred to the Tribunal in April 2013.

[2] The hearing of this appeal was by Videoconference for the following reasons:

• The form of hearing is most appropriate to allow for multiple participants;
• There are gaps in the information in the file and/or a need for clarification; and
• The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Preliminary Matter

[3] At the outset of the hearing Mr. Moras produced a brief containing written submissions as well as numerous medical reports and records that were not in the hearing file. Mr. Moras orally outlined the additional medical reports and records, and the Tribunal determined that, although these records were being produced long after the timelines set out in the Notice of Hearing, they were likely significant and that it would be unfair to the Appellant if this additional medical information was not before the Tribunal.

[4] The Tribunal determined that the oral evidence should proceed and that once the oral evidence was completed the hearing would be adjourned on the following terms:

1. The Appellant’s representative is to file the brief with the Tribunal on or before April 20th.
2. A copy of the brief is to be immediately forwarded to the Respondent who will have 30 days to file responding submissions.
3. Once all of the additional documents and submissions have been received, or the time for filing same has expired, the Tribunal will determine if a further hearing is required. In the event a further hearing is required, the further hearing will likely proceed by teleconference.
4. If the Tribunal determines that no further hearing is required, the Tribunal will proceed to deliver the written reasons for decision.

The law

[5] 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.

[6] 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).

[7] 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.

[8] 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

[9] The Tribunal finds that the MQP date is December 31, 2012.

[10] 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

[11] The Appellant was 47 years old on the December 31, 2012 MQP date; she is now 50 years old. She was born in X (Portugal) and moved to Canada at the age of six in 1971. She completed her grade 12 high school degree and has not pursued any further formal education. The only upgrading that she took was a computer course about 20 years ago. She started working right after high school, and her employment experience has involved secretarial work in a law office for about one year, and then order entry and related work for three different fabric companies.

[12] She was involved in a motor vehicle accident (MVA) on September 11, 2000 and was off work for approximately four months; she did not have any continuing medical problems from that MVA. In December 2008 she was involved in a further MVA when she was rear ended while on her way to work. She was off work until March 2009, when she returned to work on modified hours (9 am to 1 pm). She was not able to continue to working past May 2009 because of her pain, and her inability to do the required bending, sitting, and standing. She has not returned to work since then.

Application materials

[13] In her CPP disability questionnaire, date stamped by the Respondent on June 1, 2011, the Appellant indicated that she has a grade 12 education and that she last worked doing order entry for G. U. from August 4, 1992 until May 22, 2009. She noted that she stopped working because of a motor vehicle accident (MVA). She claimed to be disabled as of May 22, 2009 and listed the illnesses or impairments that were preventing her from working to include lower back pains and inability to sit or stand for long.

[14] She described her difficulties/functional limitations as follows: sitting or standing for 20 minutes; walking for 30 minutes; bothers her to lift weight; not able to reach far out; not able to bend much; sometimes hard to put on her pants; no problems with bowel or bladder habits; has to take breaks between household chores and one of her children has to go with her when shopping; no problems with seeing, hearing, speaking, remembering, or concentrating; a hard time falling to sleep; and scared to drive but able to drive for ½ hour. She noted Mobicox (15 mg, once per day) as her only medications and her treatments to include physiotherapy once a week, a psychologist once a week, and a psychiatrist every six weeks.

[15] A report dated May 20, 2011 from Dr. Fong, the Appellant’s family doctor, accompanied the CPP application. The report diagnosis chronic back pain as a result of a MVA in December 2008, post-traumatic stress disorder, and depression. The report notes that the Appellant has complained of persistent back pains as a result of the MVA; that she has had multiple interventions including extensive physiotherapy and medications; and that she has developed depression as a result of the MVA. The Appellant’s medications are listed as Mobicox 15 mg once daily, Elavil 12.5 mg qhs, and Sertraline 50 mg. The report indicates that no further consultations or medical investigations are planned. The physical findings and functional limitations are noted as palpation tenderness of the lower back with reduced range of motion; active flexion of the back to 70 degrees; no neurological deficits; and pains with bending her back. The prognosis is that her back pains are likely chronic.

Oral evidence

Appellant’s Evidence

[16] The Appellant reviewed her education and employment history. She described herself as an average student in high school. At the time of the December 2008 MVA she was working for G. U.; her duties included order entry, reviewing orders to make sure they were accurate, contacting customer service if documentation was missing, proof reading orders, using the computer, and making phone calls. She stated that she had fully recovered from the 2000 MVA and that she did not have any significant medical problems prior to the December 2008 MVA.

[17] She described the December 2008 MVA in which she was rear ended while on the way to work. She saw Dr. Fong, her family doctor, the same day and when she first saw him her main complaints were neck, right shoulder, and lower back pain. She returned to see Dr. Fong on the following day and he sent her for various treatments including physiotherapy, massage therapy, acupuncture, and ultrasound. She stated that she continued to go for treatments until last year, although there were some gaps in treatment during periods the insurance company refused to pay. She initially went to Paramount Rehab and after December 2009 started to go to Active Care. Initially she went to therapy three times per week, and over time this was reduced to once a week.

[18] The Appellant stated that after about one year she noticed that she was becoming depressed because of her constant pain. She was initially referred to Dr. Hill for psychotherapy and she saw him once a week for about one year. She started to see Dr. Slyfield in December 2010; she saw him 3-4 times in 2011, then there was a gap for a year, and then she started to see him again in 2012. The Appellant could not recall the last time she saw Dr. Hill.

[19] The Appellant stated that as of December 2012 she was going for both physical and psychological treatments, but at the present time she isn’t going for any treatments. She stated that she has tried all type of medications but nothing helped. She now takes four Extra Strength Tylenol a day; she is not taking any anti-depressant or anti-anxiotic medications. She was taking clonazepam as of December 2012. She went to the Rothbart Pain clinic in February 2013, and underwent epidural injections in her back; she only went once because the injections made her feel worse. She now sees Dr. Fong when she has a specific problem but she no longer sees him for her pain because he has told her there is nothing further he can do.

[20] On a typical day she wakes up, showers, and makes coffee. She then drives her son to school, come home and tidies up a bit. She will check up on her 80 year old mother who lives down the street - sometimes her mother comes over to her house. She is able to do basic laundry and cleaning, but her children help her by carrying down the laundry and doing vacuuming. She is able to do light grocery shopping, and stated that her mother comes with her when she does heavier shopping and helps carry the bags. She has trouble sleeping so she naps sometimes during the day. She might watch a little television and look things up on the computer. She goes on the exercise bike once a week; she doesn’t go for walks because she has no energy and is in constant pain. She tries to stretch for ½ hour a day. No one has suggested yoga or meditation, and no one recommended that she attend a chronic pain program. She uses a chair in the shower, but doesn’t use any other assisting devices. She is able to take care of her own personal grooming.

[21] When describing her limitations the Appellant stated that because of the pressure on her back she can’t sit for any period of time, and that she has to continually sit and stand…she is emotional and cries all the time…she can’t lift anything…she can’t sleep…she isn’t able to do any kind of job. When asked why not, she stated that no one will want someone who can’t sit and has to continually get up. She believes her condition plateaued about December 2009 and that it is that same now as it was then. She hasn’t looked for other work because she doesn’t feel well and is in pain all of the time.

F. P.’s evidence

[22] He has known the Appellant since 1988 and they were married in 1990. Prior to the December 2008 the Appellant was very easy going, happy, and mobile. She had no complaints about her health. She did the housework before the accident - now she tries, but has to stop halfway. She is always complaining about her back and she has difficulty getting in and out of bed. Her condition hasn’t changed much in the last three to four years.

[23] He isn’t sure what treatments the Appellant was going to as of December 2012. He believes that the Appellant is unable to work, because any work she would do would require a lot of sitting and she is very uncomfortable sitting - she can’t do repetitive things, or any physical work.

Medical evidence

[24] 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.

[25] X-rays of the lumbar spine in February 2009 revealed moderately severe narrowing at L5-S1 where discitis is also strongly indicated.

[26] A CT scan of the Appellant’s lumbar spine of July 3, 2009 revealed degenerative changes at the L5-S1 level, with vacuum phenomenon, and a mild diffuse posterior bulge. There was no evidence of a focal disc herniation.

[27] On July 7, 2009 Dr. Hill, psychologist, reported that the Appellant currently suffers severe anxiety and depression, including being terrified and nervous with an inability to relax, fear of the worst happening, heart pounding, being unsteady, fear of losing control along with a loss of pleasure, agitation, irritability, indecisiveness, changes in appetite, worthlessness, loss of energy, changes in her sleeping pattern and tiredness. He stated that she would require at least 12 sessions of therapy and recommended that she consult a psychiatrist for an assessment of her suicidal ideations and medication prescription, if necessary.

[28] A Functional Abilities Evaluation Report dated August 15, 2009 prepared by Behrouz Elmiyeh, certified kinesiologist, recommended a modified and gradual return to work trial after recommendations including participating in a corrective exercise program and an ergonomic assessment of her workstation were implemented.

[29] A fracture clinic consultation report by Dr. Seligman, orthopaedic surgeon, dated June 14, 2010 noted that the Appellant has lower back pain since 2008; that she has no leg or shoulder pain; that her x-rays are normal; that she has a disc bulging on the CT scan; and that she has been on physiotherapy and anti-inflammatories. The report concludes that the Appellant has chronic lower back pain and muscle spasm, and that symptomatic and continued similar treatment is all the he can recommend.

[30] On November 29, 2010 Dr. Slyfield, psychiatrist, reported that the Appellant has pain disorder and some elements of post-traumatic stress disorder. He prescribed Sertraline 50-150 mg daily over the next three weeks, after which he was to see her again.

[31] A MRI of the lumbar spine on April 28, 2012 revealed degenerative change and herniation of mild degree at L5-S1.

[32] A progress note from Dr. Hill dated March 11, 2013 indicates that the Appellant was attending weekly for therapy, that she was taking clonazepam, that her prognosis was guarded, and that her current Global Assessment of Functioning (GAF) was 60.

[33] On April 2, 2013 Dr. Gonzales, from the Rothbart Centre for Pain, noted that the Appellant’s main complaint was low back pain post a December 2008 MVA. His impression was degenerative disc disease of the lumbar spine, worse at L5-S1. He recommended a trial of diagnostic/therapeutic interventions and the Appellant was to follow up for a right lumbar epidural injection at L5-S1.

[34] On April 15, 2014, Milena Romalis, occupational therapist, and Robert Katz, registered social worker reported to the Appellant’s lawyer on their vocational assessment of the Appellant. The report comments on the Appellant’s current situation as follows:

Today, she is overwhelmed by depression, pain, and terror for the future. She is able to cook for her family, drive her children to school, maintain a semblance of order in the home and attend to her personal care needs, but she is barely able to do anything else. She could not describe any activity that is fun or pleasurable. And she is overwhelmed by the financial strains she has imposed on her family while out of work. Fortunately, she is supported by her siblings and receives an enormous amount of help from her mother.

[35] The report also notes that it is the assessors’ impression that the Appellant’s physical and psychological health has declined since 2009, and that it is continuing its downward spiral. The report comments, “This does not augur well for a return to work.” The Appellant advised the assessors that she had tried virtually everything including physiotherapy, chiropractic treatment, psychotherapy, massage therapy, acupuncture, epidural injections, and application of heat and prescription medications. She also advised that she makes a point of walking, stretches a bit, and rides her exercise bike once a week.

[36] The report concludes:

We appreciate that Ms L. P. has been damaged, but we do not accept that she has been destroyed. On interview, we emphasized our belief that some improvement is a realistic possibility. We encouraged her to re-assume many trappings of her pre- accident life. Since she is not able to work full-time at G., we encouraged her to seek out part-time employment in another field. For example, she may be able to earn an income as a babysitter or companion. And this could lead to still further progress in both her family life and the labour force.

[37] On June 2, 2014 Dr. Fong reported to the Appellant’s lawyer. In his reports Dr. Fong detailed the Appellants numerous visits subsequent to the MVA through to April 9, 2014. There were 12 visits in 2009; eight visits in 2010; five visits in 2011; six visits in 2012; three visits in 2013; and three visits up to April in 2014. Dr. Fong noted that during each of the visits the Appellant complained of persistent lower back pain; that her neck and shoulder pains had resolved; and that she also complained of symptoms compatible with a diagnosis of depression and post-traumatic stress disorder. He had referred the Appellant to Dr. Seligman, orthopaedic surgeon, to Dr. Slyfield, psychiatrist, to Dr. Hill, psychologist, , and to the Rothbart Centre for Pain.

[38] Dr. Fong concluded:

In summary, it has now been five and a half years since her motor vehicle accident. Despite intensive physiotherapeutic, massage and acupuncture treatments and attendance at a chronic pain clinic, Mrs. L. P. continues to complain of severe chronic lower back pains as a result of the motor vehicle accident which has impacted on her activities of daily living. She has likely reached a plateau in her recovery and is likely to continue to suffer from these chronic back pains. She continues to have difficulties with any activities involving bending of her back and has pains with prolonged sitting.

Her diagnoses are: Chronic Pain Syndrome, myofascial strain of her lower back, Degenerative Disc Disease of her Lumbar Spine with a small disc herniation and Post Traumatic Stress Disorder. She continues to take anti-inflammatory medications on an intermittent basis and continues with her home exercises. No further investigations nor therapeutic treatments are planned at this time.

Submissions

[39] Mr. Moras submitted that the Appellant qualifies for a disability pension because:

1. Both she and her husband were earnest and honest witnesses, and her long work history demonstrates that she is the type of person who would be working if she were able to do so;
2. Mr. Moras reviewed the medical evidence and placed particular reliance on the June 2, 2014 report from Dr. Fong which confirms the longstanding nature of the Appellant’s disabling conditions and that treatment options for both her physical and psychological conditions have been fully explored;
3. The Appellant attempted to return to work on modified hours but wasn’t able to continue working past May 2009.

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

1. Dr. Fong’s May 20, 2011 report indicates that the Appellant has tenderness in her lower back but no neurological deficits, and that no further consultations or investigations are planned;
2. The July 2009 CT scan reveals mild disc bulge but no disc herniation;
3. There is no indication that the Appellant has required any aggressive medical interventions such as hospitalization or that she has attempted alternative work;
4. The evidence does not substantiate a medical condition which would have precluded the Appellant from all types of work in December 2012 and continuously thereafter.

Analysis

[41] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before December 31, 2012

Severe

[42] 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

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

[44] The burden of proof lies upon the Appellant to establish on the balance of probabilities that on or before December 31, 2012 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.

[45] All of the Appellant’s possible impairments that affect employability are to be considered, not just the biggest impairments or the main impairment: Bungay v Canada (Attorney General), 2011 FCA 47. Although each of the Appellant's medical problems taken separately might not result in a severe disability, the collective effect of the various diseases may render the Appellant severely disabled: Barata v MHRD (January 17, 2001) CP 15058 (PAB).

[46] 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. Incapacity can be demonstrated in a number of different ways, for example, it can be established through evidence that the Appellant would be incapable of any employment-related activity: C.D v MHRD (September 18, 2012) CP27862 (PAB).

Application of Guiding Principles

[47] In light of the extensive supporting medical evidence, particularly the report from Dr. Fong dated June 2, 2014, the Tribunal accepts the Appellant’s evidence that she could not work after May 2009 in any regular gainful employment because of the cumulative effect of her physical and psychological disabilities. The Appellant impressed the Tribunal as a genuine person who is eager to live a normal and active life, but is unable to do so because of her chronic back pain, depression, and post-traumatic stress disorder.

[48] None of the doctors who have treated her have doubted her sincerity and the medical evidence makes it clear that she has diligently explored all treatment options including visits with her family doctor, prescription medications, specialist consultations, as well as extensive treatment modalities including physiotherapy, chiropractic, psychotherapy, massage therapy, acupuncture, and epidural injections. Dr. Fong’s June 2, 2014 report confirms the Appellant’s extensive treatment over many years and that she continues to suffer severe chronic lower back pain and has likely reached a plateau in her recovery.

[49] The Appellant had a lengthy and consistent work history prior to the December 2008 MVA and she impressed the Tribunal as the type of person who would continue working if she were able to do so. The evidence confirms the emotional toll that the Appellant’s inability to continue working has had on her. The Tribunal noted that the Appellant attempted to return to work but was unable to continue after May 2009 because of her severe pain, even though she was on modified hours and performing light sedentary work. This supports that she lacks the regular capacity to pursue any form of gainful employment.

[50] Having regard to the totality of the evidence the Tribunal is satisfied, on the balance of probabilities, that the Appellant suffers from a severe disability in accordance with the CPP criteria.

Prolonged

[51] Having found that the Appellant’s disability is severe, the Tribunal must also make a determination on the prolonged criteria.

[52] The Appellant’s disabling conditions have persisted since her MVA in December 2008, and despite extensive treatment there is has been no improvement.

[53] The Appellant’s disability is long continued and there is no reasonable prospect of improvement in the foreseeable future.

Conclusion

[54] The Tribunal finds that the Appellant had a severe and prolonged disability in May 2009, when she was no longer able to continue working. For payment purposes, a person cannot be deemed disabled more than fifteen months before the Respondent received the application for a disability pension (paragraph 42(2)(b) CPP). The application was received in June 2011; therefore the Appellant is deemed disabled in March 2010. According to section 69 of the CPP, payments start four months after the deemed date of disability. Payments will start as of July 2010.

[55] The appeal is allowed.