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Reasons and decision
Persons in attendance
V. A.: Appellant
Domenic Romero: Appellant’s representative
Introduction
[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on February 12, 2013.The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal) on December 2, 2013.
[2] The hearing of this appeal was by Teleconference for the following reasons:
- the method of proceeding provides for accommodations required by the parties or participants; and
- this method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
The law
[3] 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).
[4] 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.
[5] 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
[6] The Tribunal finds that the MQP date is December 31, 2012.
[7] 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
[8] The Appellant was 45 years old on the December 31, 2012 MQP date; she is now 48 years old. The Appellant was born in Sri Lanka where she completed her high school diploma as well as a college diploma in landscaping. She immigrated to Canada in 2003 and completed a one year Food Service Worker course at Centennial College. In Sri Lanka she operated a hardware store as well as a transportation service company that delivered wheat and flower to various government shops. She started to work as a pastry chef for Highland Farms in June 2004. Prior to working at Highland Farms she had worked in short-term labour positions.
[9] The Appellant started taking classes to secure her high school equivalency through an Adult Learning Centre; however, she did not complete this because she was injured in a motor vehicle accident (MVA) on August 18, 2010. The Appellant has not worked since the MVA.
Application materials
[10] In her CPP disability questionnaire signed on February 24, 2013, the Appellant indicated that she has a high school education and that she last worked as a pastry chef for Highland Farms from June 7, 2004 until August 17, 2010; she noted that she stopped working because of a MVA. She claimed to be disabled as of August 18, 2010. When describing the illnesses or impairments that prevent her from working she stated, “It is very difficult for me to stand and sit for [a] long period of time. I have pain in my neck and shoulders.” When describing how the illnesses or impairments prevent her from working she stated, “I need to stand for my shift at work. I have a lot of pain bending my neck [and] I cannot do icing and piping. I cannot lift the boxes, reach high for ingredients and restock the shelves. Push and pull racks [sic]” The Appellant also noted that she has depression.
[11] She described physical limitations including sitting and standing (20 minutes), walking (35 minutes), lifting, carrying, and reaching (with her left hand), bending, and household maintenance (not able to by self, and requires assistance from husband and daughter), and driving (short necessary trips). She also stated that she has disturbed sleep and that she has “some problems” with memory and “some difficulty” with concentrating.
[12] A report dated March 15, 2013 from Dr. Bawangoanwala, the Appellant’s family doctor, accompanied the CPP application. The report diagnosis right breast lump-anglolipoma; thyroid nodule; right shoulder – moderately severe supraspinatus tendonopathy; mild AC osteoarthritis, abnormal biceps lateral complete SLAP tear; severe tendinosis biceps tendon; ankle joint pain – heel spur; anxiety disorder and depression; bilateral knee osteoarthritis; bilateral carpal tunnel syndrome; and mild degenerative lumbar spine disc disease.
[13] The prognosis for the Appellant’s shoulder pain was fair. Dr. Bawangoanwala opined that the Appellant has some psychosocial issues which are causing a lot of anxiety and depression, and that because she has difficulty accepting this diagnosis she has not tried possible treatment options.
[14] This is the Appellant’s second application for CPP disability. Her initial application was dated stamped by the Respondent on March 9, 2012 and denied on July 11, 2012. On January 29, 2013 the Respondent refused to accept the Appellant’s request for a reconsideration since it was submitted beyond the 90 day appeal period.
[15] A report dated December 29, 2011, from Dr. Bawangoanwala accompanied the first application. This report diagnosis right hip pain, right shoulder pain – tendinosis, neck and upper back pain, depression and anxiety (psychosocial stress). The prognosis is fair. The report concludes that the Appellant lacks motivation to improve, that she has a very anxious personality, that she is convinced that she is disabled for life, and that she has been non- compliant with anti-depressants.
Oral evidence
[16] The Appellant testified that she tried to continue her upgrading but stopped taking courses in 2012. She stated that she stopped taking the courses because of her constant widespread pain (in her back, neck, arms, hands, and shoulders) as well as hearing problems. She tried to take a course in 2015 but had to stop after one day because of her pain. The Appellant described her medical conditions prior to the MVA and stated that she was off work for about two weeks in 2008 because of a finger injury and again in 2010 (prior to the MVA) for one or two months because of leg swelling. She also had carpal tunnel problems as well as a heel spur.
[17] She stated that her main problems today are because of the constant severe pain from the MVA. She described her areas of pain as follows: from both shoulders down to the fingers; her neck; her ears and head; numbness in her forehead; in both collar bones; under both arms; her hips; her back; and her legs, more on the left than the right. She stated that her biggest problems were in her shoulders, neck, left ear, and both hands – she had pain in all these areas in 2012 and the pain has become worse since then. Sometimes she wakes up because of her pain and when asked to describe her mood she stated that she is “unhappy” and “feels sad” because of her pain.
[18] When asked why she didn’t go for treatment for her psychological issues as recommended by Dr. Bawangoanwala (see paragraphs 13 and 15, supra), she stated that she isn’t suicidal and her problem is her pain. She is trying to deal with her pain on her own by using techniques such as meditation. She stated that her thyroid and breast problems reported by Dr. Bawangoanwala do not affect her ability to work.
[19] She has office computer skills but isn’t able to work for an extended period on the computer because of her pain. When she took the free English course at home after the MVA she was only able to study for one half hour at a time (once or twice a day) because of her pain, and on bad days she wouldn’t study at all. She attended a multi-disciplinary pain program for 10 weeks and had at least 18 sessions of psychotherapy – none of these were helpful. She also attended a pain clinic where she was given “lots of needles.” She has a new family doctor who prescribes Naprosyn and gabapentin. All of the MVA claims were settled in 2015 and she has no ongoing WSIB claim. She is not receiving any benefits. She is only able to drive for a short distance. On her usual day she does “little things” but has to stop frequently because of her pain. She does some exercise and goes for walks. Her daughter helps with the housework because she (the Appellant) isn’t able to lift things.
[20] She has not attempted to return to work since the MVA (other than for one day when she tried to help a person who was making flowers). When asked why she was unable to work as of December 2012, she stated that she couldn’t work because of her pain – after she does something she is in a lot of pain. She needs help for her personal care and can’t even dress herself or brush her hair. She uses a lot of painkillers and has gone for pain management, but it didn’t help her.
Medical evidence
[21] 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.
[22] There are four reports running from March 22, 2011 to April 13, 2012 from Dr. Gozlan, psychologist. In his March 22, 2011 report Dr. Gozlan noted that the Appellant presents with severe anxiety, severe depression and severe post-accident distress. He further noted that despite rehabilitative interventions she continues to experience a great deal physical pain. Dr. Gozlan diagnosed major depressive disorder, generalized anxiety disorder, and chronic pain disorder. He assessed a General Ability to Function (GAF) of 65. He recommended 12 sessions of psychotherapy.
[23] On May 9, 2011 Dr. Silverman, psychologist, reported on his assessment of the Appellant on behalf of TD Insurance. Dr. Silverman reported that the Appellant was properly oriented to the three spheres; that although she frequently complained of cognitive deficits, no problems were evident or detected with respect to attention, concentration, judgment, memory or mental control; that she was often digressive, but easily redirected; and that she was a somewhat vague and scattered historian. He further reported that she did not exhibit any signs or symptoms of severe psychiatric disturbance and that there was no evidence of hallucinations, delusions, ideas of reference, obsessions or compulsions, or suicidal ideations. Dr. Silverman concluded that the Appellant’s self-report was not entirely supported by objective psychometric findings, which yielded evidence of symptom embellishment and sub-optimal effort that did not invalidate her psychological complaints. The report then goes on to state as follows:
Nevertheless, the other components of the examination, including the clinical interview results, behavioral observations, and documentation review suggest that Ms. V. A. has been experiencing adjustment difficulties secondary to her post-accident pain, functional limitations, health-related concerns, and the disruption to her pre-accident routine, including her extended leave of absence from work. Her psychological status also seems to have been impacted by predominantly non-accident related situational stressors, including ongoing conflict and heightened strain in her relationship with her sixteen-year-old son.
[24] In view of the psychometric evidence of symptom magnification and compromised effort, Dr. Silverman provisionally concluded that the Appellant met the diagnostic criteria of adjustment disorder with mixed anxiety and depressed mood.
[25] In a report to TD Insurance dated May 10, 2011 Dr. Silverman noted the Appellant’s current physical complaints of back, neck, and bilateral shoulder pain extending to her arms as well as headaches. He noted her current psychological complaints of adjustment difficulties, cognitive difficulties, and mood disturbance. Although the Appellant denied suicidal ideation she emphasized that she has been ‘fed up with my life’ and one day felt like ‘putting my head in the fridge.’ Dr. Silverman opined that from a psychological perspective, the Appellant is not currently considered to be suffering a substantial inability to perform the essential tasks of her pre-accident employment.
[26] On May 13, 2011 Dr. Karabatsos, orthopaedic surgeon, reported on his assessment of the Appellant on behalf of TD Insurance. The Appellant’s present complaints included back pain, neck pain, bilateral hand and arm pain, and left leg and hip pain. He noted that a MRI of the cervical spine on February 12, 2011 revealed some degenerative disc disease at C5-6 and C6-7; no spinal cord involvement; and mild left C7 nerve root impingement. Dr. Karabatsos diagnosed soft tissue injuries involving the cervical and lumbar spine as a result of the MVA. He stated that numerous non-organic features were identified during her examination that suggest a psychogenic component to her reported symptomatology. He summarized as follows:
In summary, I do not feel that this lady has any accident-related pathology disabling her from her pre-accident employment activities and housekeeping or home maintenance tasks as a direct result of the motor vehicle collision. It is highly likely that this lady has either consciously or subconsciously, decided that the accident has overwhelmingly and permanently damaged her and she has come to feel victimized. Whatever caused her initial impairment is certainly not what is propagating it. It is highly likely that non- accident factors are having a significant impact on this lady's stated level of function.
[27] Dr. Karabatsos opined that the Appellant does not suffer a substantial inability to engage in her pre-accident employment activities as a direct result of injuries sustained in the subject motor vehicle accident.
[28] On June 2, 2011 Dr. Gozlan reported that the Appellant had completed six psychotherapy sessions and recommended six further sessions. On July 14, 2011 Dr. Gozlan reported that the Appellant had completed 12 sessions of psychotherapy and that at the end of treatment she still appeared to be very anxious, overwhelmed and discouraged; that she continued to experience near constant stress and difficulty coping with her current situation; and that she was still experiencing pain throughout her body as well as frequent highly painful headaches and dizziness. The Appellant expressed eagerness to continue the progress she had made. She presented significant emotional fragility and struggles with depressed mood and withdrawal. Dr. Gozlan recommended another 12 sessions of psychotherapy.
[29] On June 28, 2011 Dr. Duncan, neurologist, recommended continued conservative symptomatic treatment and emphasized the role of an active exercise program in managing chronic pain symptoms. He stated that there were no surgical options available that would improve her neck or arm pain.
[30] On October 27, 2011 Dr. Wong, physiatrist, reported on his assessment of the Appellant on behalf of her representative. When describing her pre-accident medical condition he noted that she was involved in a MVA two to three years ago but did not sustain any injuries; that she suffered with right foot plantar fasciitis in 2001 and required injections; that she sprained her right hand fifth digit at work about six years ago; and that she had a history of carpal tunnel syndrome. The Appellant’s current complaints included headaches, constant neck pain with radiation to her shoulder blades and down into her arms, pain between her shoulder blades and across her lower back, insomnia, and feelings of stress and depression due to her ongoing pain problem. Dr. Wong diagnosed moderate myofascial injury of the cervical spine and a central disc herniation, which impinged the left side C7 nerve root; moderate myofascial injury of the lumbar spine paraspinal muscles with referred pain to her shoulders and arms; moderate myofascial injury of the lumbar spine paraspinal muscles and the upper sacral spine gluteal muscles; post- traumatic insomnia; and psychological problems. He opined that as a direct result of her physical and/or psychological injuries she suffered a substantial inability to perform the essential tasks of her pre-accident employment as a pastry chef. He further opined that given her education, skill, and training she also suffered a complete inability to perform the essential tasks of any employment.
[31] On November 4, 2011 Dr. Cooper, psychiatrist, reported to the Appellant’s lawyer on his assessment of the Appellant’s emotional state. He reported that the Appellant is unable to be gainfully employed in any kind of competitive capacity and that the prognosis for vocational rehabilitation is poor. He opined that it is highly doubtful that the Appellant could be trained for non-physically exerting work which requires only cognitive functioning. He noted that the Appellant can barely sit for the length of time required for the assessment, that she is always in pain, that she has problems focusing, and that she has problems with her memory and concentration. His prognosis was in abeyance and he stated that she needs psychotherapy. He also stated, “I doubt that anti-depressants would assist this type of depression and one should keep in mind that anti-depressants do have side effects.”
[32] On February 22, 2012 Dr. Manolopoulos, orthopaedic surgeon, reported that the Appellant has had left-sided shoulder pain since the MVA and that the MRI was consistent with a small, articular-sided tear of the rotator cuff. The Appellant advised that her pain was intolerable. Dr. Manolopoulos opined that her clinical examination was most consistent with myofascial pain syndrome and that it was unlikely that she would significantly improve with surgery. He offered a cortisone injection as an alternative.
[33] On March 22, 2012 Dr. Manolopoulos reported that a repeat MRI demonstrates diffuse findings of tendinosis throughout her shoulders as well as some chondromalacia within the glenoid itself. Although one note on the MRI suggested surgery would be helpful, he wouldn’t entertain surgery without first performing a cortisone injection, which he did on that day. He opined that most likely surgery would carry at best a 50-50 chance of improvement.
[34] On April 13, 2012 Dr. Gozlan reported that the Appellant had attended a further six sessions of psychotherapy, that her attendance was very consistent throughout, and that at the end of treatment she still appeared to be very anxious, overwhelmed and discouraged. The Appellant expressed eagerness to continue the progress she has made during the therapy sessions; however, due to difficulties attending treatment she did not wish to request further sessions at that time.
[35] On May 7, 2012 Dr. Patel from the Centre for Pain Management reported to Dr. Bawangoanwala. Dr. Patel’s impression was multiple small injuries to her left shoulder, possible early reflex sympathetic dystrophy, and depression. He opined that the Appellant would benefit from an urgent psychiatric referral to assist with her depression, and asked Dr. Bawangoanwala to arrange this to assist with her depression. He stated that the psychiatric referral might provide an opinion on the use of anti-depressants.
[36] On December 24, 2012 Dr. Sahlas, chiropractor, reported on his assessment of the Appellant on behalf of TD Insurance. Dr. Sahlas reported that from a chiropractic perspective, the Appellant sustained soft tissue injuries primarily of the cervical spine, shoulders and shoulder girdles, and lumbar spine as a result of the MVA. He noted that testing of the cervical spine was marred by several non-organic signs but pointed out that the MRI reports revealed significant findings including partial tears, tendinopathies, chondromalacia, SLAP tears, and compromised pulley mechanism regarding which comment should be deferred to an appropriate medical practitioner. He did not consider the proposed treatment and assessment plan of Dr. Debora to be reasonable and necessary.
[37] On December 31, 2012 Dr. Dancyger, psychologist, reported on his assessment of the Appellant on behalf of TD Insurance. He reported that the Appellant was oriented as to time, place and person; that she did not present with any overt signs as to the presence of a thought disorder; and that she did not appear to be anxious or depressed. He further reported that her test results did not show any significant psychological problems or any sign of symptom magnification. He opined that the proposed treatment and assessment plan submitted by Dr. Keeling, psychologist, was neither reasonable nor necessary.
[38] On January 11, 2013 Dr. Capozzi, psychologist, reported on her assessment of the Appellant on behalf of the Appellant’s representative. She opined that prolonged pain and the resulting physical limitations are acting as a continuous stressor in the Appellant’s life; that overall her pain is having some negative impact on her activities of daily living; and that she is not experiencing significant emotional distress, other than decreased sleep, and some mild vehicular anxiety and depression. She diagnosed chronic pain associated with both psychological factors and a general medical condition and assessed a GAF of 65-69. She recommended psychoeducational treatment, preferably in a multidisciplinary chronic pain management program, as well as training in deep breathing and muscle relaxant techniques.
[39] On January 22, 2013 Dr. Abouali, from Athlete’s Care Sports Medicine Centre, reported that the Appellant has a complicated situation given her MVA and chronic pain issues. He explained to the Appellant that a cortisone injection may be of assistance both for diagnostic and therapeutic purposes; however, the Appellant wanted to continue with anti-inflammatory medications and her own exercises, which he thought was reasonable.
[40] On January 23, 2013 Dr. Debora, chiropractor, reported on his chronic pain intake assessment of the Appellant on behalf of her representative. Dr. Debora opined that the Appellant was suffering from chronic pain as a result of the MVA and that she would benefit from a multi-disciplinary chronic pain program.
[41] On March 1, 2013 Dr. Venkateswaran, orthopaedic surgeon, diagnosed bilateral shoulder and arm pain, not yet determined. His impression was that the Appellant has a very difficult problem with many different areas. He explained to the Appellant that there is not clear pathology and that he cannot confidently predict that she would improve with surgery. He recommended that she see a pain specialist and try medications such as Lyrica and gabapentin.
[42] On August 15, 2013 Dr. Goldbach, chiropractor, reported on his assessment of the Appellant for Security National Insurance Company. Dr. Goldbach’s prognosis with respect to the Appellant’s physical injuries was favourable. He deferred comment on the proposed mental health treatment services to Dr. Dancyger, psychologist.
[43] In a paper review for TD Home and Auto Insurance Company on August 15, 2013 Dr. Dancyger opined that the proposed goods and services in Dr. Debora’s treatment plan were from a psychological perspective, not considered to be reasonable and necessary.
[44] On December 5, 2013 Dr. Debora reported that the Appellant had successfully completed that Professional Chronic Pain Associates pain management program. During the program the Appellant’s treatments while attending the program included chiropractic, massage therapy, ultrasound, cryotherapy/hyperthermy, active/passive stretching, core stability training, proprioceptive training, resistive theraband training, cardiovascular/endurance training, pain management group counseling, and pain management education seminars. Dr. Debora noted that the Appellant made minimal to moderate progress over the course of treatment within the pain management program, and that despite improving her coping skills there has only been a minimal improvement in her self-reported level of pain.
[45] A psychological treatment discharge report dated December 31, 2013 prepared by Linda Tomas, psychotherapist, and Dr. Capozzi, supervising psychologist, noted that the Appellant had attended all sessions of psychological treatment from June 18, 2013 to August 20, 2013. The report also noted that she was a very active participant in the chronic pain management program. The psychological prognosis indicates that in regards to self-care the Appellant continues to be mildly disabled, that in regards to vocational ability she continues to be severely disabled, and that in regards to domestic activities she continues to be moderately disabled.
[46] A vocational evaluation report dated December 31, 2013 prepared for the Appellant’s lawyer by the Rehabilitation Canada Network concluded that no suitable vocational alternatives could be identified given the Appellant’s aptitudes, education, training, experience, current emotional state, and her physical and psychological impairments.
[47] On May 19, 2014 Dr. Wong reported on his reassessment of the Appellant. He noted that the Appellant had attended physiotherapy until October 2013, and that this only temporarily helped with her pain. His findings and diagnosis were similar to those in his October 27, 2011 report. He again opined that the Appellant was unable to perform the essential tasks of her pre- accident employment. He noted that she had sustained injuries to her neck, upper back, left shoulder and lower back area, which affects her ability [to work] with prolonged periods of standing, bending and lifting, repetitive movements of the left arm, which are all of the important tasks of her job. He also again opined that she was unable to perform the essential tasks of any employment given her education, skill and training. He noted that she had sustained multiple injuries and had a limited education background, in addition to limited transferrable skills.
Submissions
[48] Mr. Romeo submitted that the Appellant qualifies for a disability pension because:
- She suffers from severe widespread pain, she is unable to independently attend to her personal care, and she requires assistance from her daughter for housekeeping
- He referred the Tribunal to Dr. Cooper’s November 2011 report and to Dr. Wong’s October 2011 and March 2014 reports which confirm that because of the combination of her psychological and physical issues, the Appellant is unable to pursue any form of gainful employment;
- He submitted that Dr. Bawangoanwala’s comments as noted in paragraphs 13 and 15, supra, do not suggest that the Appellant is being uncooperative and highlight the difficulty she has in understanding the psychogenic component of her conditions; he noted that she has already undergone extensive psychotherapy with Dr. Gozlan and in the pain management program but she relates psychotherapy to “suicidal ideation” as opposed to a means of helping her cope with her pain;
- He further submitted that she has multiple ongoing issues and that she has been unable to work since the August 2010 MVA.
[49] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- While the Appellant may have some soft tissue injuries as a result of her MVA and may be unable to perform her usual work as a pastry chef, the medical evidence does not show any severe pathology which would have prevented her from doing suitable work within her limitations as of the MQP;
- There is no evidence that she has sought suitable work with an alternate employer within her limitations;
- Given the conflicting nature of the multiple assessments at the request of her insurance company and her representative, the conclusions from which appear to support the requesting party, no solid conclusion of her capabilities can be drawn;
- She was involved in a seemingly minor MVA and the diagnostic testing does not show any severe underlying pathology or neurological compromise;
- The Tribunal should place more emphasis on the multiple reports and clinical notes of Dr. Bawangoanwala which do not support a finding of a severe disability, question her lack of motivation to work prior to the MVA, and note non-compliance with taking new medications;
- The Appellant has failed to meet her onus to establish a severe and prolonged disability as of the MQP.
Analysis
[50] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before December 31, 2012.
Severe
[51] 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
[52] The following cases provided guidance and assistance to the Tribunal in determining the issues on this appeal.
[53] 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.
[54] Remedial legislation like the Canada Pension Plan should be given a liberal construction consistent with its remedial objectives and each word in the subparagraph 42(2)(a)(i) of the CPP must be given meaning and effect, and when read in that way, the subparagraph indicates that Parliament viewed as severe any disability which renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation: Villani v Canada (Attorney General), 2001 FCA 248.
[55] 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).
[56] 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).
[57] An Appellant is not expected to find a philanthropic, supportive, and flexible employer who is prepared to accommodate her disabilities; the phrase in the legislation "regularly of pursuing any substantially gainful occupation" is predicated upon the Appellant's capacity of being able to come to the place of employment whenever and as often as is necessary for her to be at the place of employment; predictability is the essence of regularity: MHRD v Bennett (July 10, 1997) CP 4757 (PAB).
Application of Guiding Principles
[58] In light of what the Tribunal considers to be extensive supporting medical evidence, the Tribunal accepts the Appellant’s evidence concerning her longstanding severe pain and how it has affected her life and her capacity to work. She experiences constant pain in her back, neck, arms, hands, shoulders, and legs. There is obviously a psychogenic component to her pain; however, this does not detract in any way from the fact that her pain is real and that she is genuinely suffering. It is also significant that the MRIs reveal significant findings and degeneration in her shoulders as well as her cervical and lumbar spine (see paragraphs 30 & 36, supra).
[59] In addition to her constant widespread pain the Appellant suffers from multiple other conditions including headaches, insomnia, anxiety, and depression. She had pre-MVA injuries and conditions including right foot plantar fasciitis, a sprained right hand fifth digit, and a history of carpal tunnel syndrome. Her family doctor has also diagnosed breast lump-anglolipoma and thyroid nodule. Although the Appellant testified that the latter conditions do not prevent her from working, they are significant conditions and considering the surgeries that the Appellant underwent in May 2011 and April 2012, they must have contributed to her emotional vulnerability which is a significant component of her disability. As the Bungay and Barata decisions, supra, indicate the cumulative effect of all of the Appellant’s conditions should be considered.
[60] The Respondent relies on what it submits are conflicting expert reports concerning the Appellant’s ability to pursue alternative less physically demanding employment. In terms of the assessment reports, the Tribunal prefers the assessments from Dr. Cooper and Dr. Wong (paragraphs 30, 31 & 47, supra) to those from Dr. Silverman and Dr. Karabatsos (paragraphs 23- 27, supra). Dr. Cooper and Dr. Wong took into account the cumulative effect of the Appellant’s physical and psychological conditions whereas Dr. Silverman and Dr. Karabatsos appear to have considered these conditions in isolation. Dr. Silverman only considered her condition from a psychological perspective while Dr. Karabatsos seemed to focus only on what he considered to be her physical injuries from the MVA and did not consider what he referred to as “non-accident factors.” The reports from Dr. Cooper and Dr. Wong are more in line with the CPP criteria which takes into account all physical and psychological conditions, whatever the source, as long as the cumulative effect of the conditions is severe prior to the MQP, and continuously thereafter.
[61] The Respondent also relies on the comments from Dr. Bawangoanwala concerning the Appellant having difficulty accepting the diagnosis of anxiety and depression, her not having tried possible treatment options, and her having been non-compliant with anti-depressant (see paragraphs 13 & 15, supra). The Respondent submits that the Tribunal should find that the Appellant has been non-compliant with recommended treatment options.
[62] The Tribunal disagrees:
- The Tribunal agrees with Mr. Romeo that these comments do not suggest that the Appellant has been uncooperative but are more indicative of the difficulty she has in understanding the psychogenic component of her condition.
- The Appellant was assessed by Dr. Cooper, an experienced psychiatrist, in November 2011 who doubted that anti-depressants would assist her type of depression and noted that they have side effects (see paragraph 31, supra).
- The Appellant has attended for numerous psychotherapy sessions with Dr. Gozlan from March 2011 to April 2012 and with Dr. Capozzi from June 2013 to August 2013. The reports indicate that the Appellant was a consistent and eager participant in these sessions (see paragraphs 22, 28, 34, 38 & 45, supra).
- The evidence establishes that the Appellant has been compliant with and has participated in extensive medical treatments including numerous treatment modalities such as physiotherapy, chiropractic, and massage therapy; that she has seen numerous specialists who have recommended against surgery; that she has attended a chronic pain management program as well as undergone injections; that she takes pain and anti-inflammatory medications; and that she practices home exercises as well as relaxation techniques such as meditation.
[63] On the whole of the evidence, the Tribunal has resolved the compliance issue in favour of the Appellant and is satisfied that she has diligently pursued multiple treatments for her medical conditions.
[64] The Tribunal recognizes that the Appellant is fairly young, well educated, and that she has significant transferable skills. However, the Tribunal is satisfied that by reason of her constant severe pain as well as the cumulative effect of her physical and psychological conditions, she lacks the regular capacity to pursue any form of gainful employment. She could not be a predictable and reliable employee. As the Bennett decision, supra, indicates, predictability is the essence of regularity.
[65] The Tribunal finds that the Appellant has established, on the balance of probabilities, a severe disability in accordance with the CPP criteria.
Prolonged
[66] Having determined that the Appellant suffers from a severe disability, the Tribunal must also consider the prolonged criteria.
[67] The Appellant’s ongoing psychological and physical conditions have been extant since her MVA in August 2010. Despite extensive treatment, there has been little or no improvement.
[68] The Appellant’s disability is long continued and there is no reasonable prospect of improvement in the foreseeable future.
Conclusion
[69] The Tribunal finds that the Appellant had a severe and prolonged disability in August 2010, when she suffered injuries in the MVA. 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 February 2013; therefore, the Appellant is deemed disabled in November 2011. According to section 69 of the CPP, payments start four months after the deemed date of disability. Payments will start as of March 2012.
[70] The appeal is allowed.