Canada Pension Plan (CPP) disability

Reasons and Decision

Persons in attendance

The Appellant and his legal representative Mr. Steven R. Yormak were in attendance at the hearing.

Introduction

[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on March 21, 2012. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).

[2] The hearing of this appeal was in person for the following reasons:

1. The Appellant will be the only party attending the hearing; and
2. There are gaps in the information in the file and/or a need for clarification.

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:

1. be under 65 years of age;
2. not be in receipt of the CPP retirement pension;
3. be disabled; and
4. 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] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 2013.

[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.

Evidence

[8] The Appellant was born in April 1960. In a questionnaire submitted with his Application the Appellant noted that he had completed grade 12 and had a college diploma in Construction Engineering Technology Management.

[9] From 1988 to March 2010 the Appellant worked at X. In 1994 he had a work related truck accident that resulted in left eye contusion and laceration of the periorbital region; compression fractures T10 through L1; fracture of the left thumb; laceration of tendon and nerve of the left wrist and laceration of right wrist tendons. He was off work for eighteen months.

[10] He stopped working in March 2010 because of chronic pain in the lower back, pelvic area and right hip and nerve root damage in mid to lower back. He noted he suffered from post-traumatic spine fractures T10 through L1 and L4 and L5 and lumbar radiculopathy radiating into both legs. He also had right hip-osteophytic formation as well as joint narrowing and subchondral sclerosis, cystic formation. He described short endurance when sitting, standing or walking, chronic lower back pain, difficulty lifting or carrying more than five pounds; no bending/twisting or repetitive movement of his lower back, chronic pain in right leg and hip area and a problem concentrating as a result of the pain. He also suffered from chronic emphysema. He stated that he had stopped all hobbies in March 2010. At the time of his Application the Appellant was on Tylenol Extra strength 500 mg. two daily and tramacet (the dosage to be determined). The Appellant was waiting for facet injections and a total right hip replacement.

[11] A June 16, 2010 MRI of the lumbar spine showed mild wedge fractures at T-12 and L-1. There were mild degenerative changes in other vertebrae but the major finding was at L4-5 where there was mild to moderate narrowing of the intervertebral foramina with the disc contacting the traversing right LS nerve root at the level of the lateral recess.

[12] In January 2012 the Appellant’s legal representative asked his family doctor, Dr. Chapeskie to address the Appellant’s range of motion in response to some reports from the Workers Safety and Insurance Board. Dr. Chapeskie noted in the Appellant’s medical record on January 19, 2012 that it was impossible to do a range of motion assessment until the issues with the Appellant’s hip were resolved as that would be a confounding factor in the range of motion assessment.

[13] Dr. Chapeskie prepared a Medical Report which was submitted to the Respondent and date stamped March 21, 2012. He noted that he had known the Appellant for more than 20 years. He diagnosed the Appellant with post traumatic spine fracture T-10 through L-1 and L-4 and L-5 and severe post traumatic arthritis right hip. He reported that the Appellant’s injuries were sustained in 1994 and that the Appellant had re-injured his back in October 2009. He endorsed limitations relating to sitting, standing or walking (which, if prolonged, lead to a very sore back), not able to lift more than five pounds, and no bending nor twisting of back. He noted that facet injections had been of no help and additionally, that no help was obtained from 51 sessions of physiotherapy while chiropractic made things worse. His prognosis was poor.

[14] Dr. Chapeskie had previously, on December 14, 2010, reported to Mr. Yormak. He noted that the Appellant exacerbated his chronic low back pain in October 2009. He reported that the Appellant described his pain level as varying from 5 to 7 out of 10; increasing after being up for an hour and that he had trouble driving more than half an hour. He reported that an MRI from June 2010 showed/confirmed mild, old healed wedge compression fractures of the T12 and L1 vertebral bodies. He considered the Appellant’s prognosis for a full recovery poor and even modified work was a problem for him. He considered the Appellant’s disability permanent. A very similar letter was sent by Dr. Chapeskie to the Appellant’s private insurer on December 27, 2010.

[15] The Appellant had right total hip replacement surgery on July 5, 2012. Pre-operatively, his surgeon, Dr. McCalden, reported the Appellant’s history of gradual development of limited mobility with regards to the right hip and his inability to walk 50 - 100 feet without a cane before his pain became excruciating and he could not walk any further. He reported that the Appellant could get nighttime pain in the left hip. Dr. McCalden considered the Appellant to have progressive and quite severe osteoarthritic changes in his right hip causing debilitation, limited mobility and nighttime pain.

[16] The Appellant continued to complain of lower back pain 6 to 7 out of 10 with sciatic pain in an office note of Dr. Chapeskie dated September 10, 2012.

[17] The Appellant saw Dr. McCalden again in October 2012 at which time his recovery from hip surgery was progressing well. The Appellant is reported to have asked to discuss his back condition with a spinal surgeon saying that if there was spinal surgery that could help he would entertain the idea. There is no reference in the record that the Appellant was referred to a spinal surgeon.

[18] Dr. Chapeskie referred the Appellant to a physiatrist, Dr. Death, in the spring of 2011. There are four reports from Dr. Death in the record:  May 3, 2011; August 5, 2011; December 9, 2011; October 12, 2012:

1. In his May 3, 2011 report Dr. Death notes the Appellant’s problems are increased low back pain and new right sciatica. He suspected there were two pain generators in the back:  one at T12-L1 which is the chronic pain that was work related; the second being irritation of the right L5 nerve root at L4-5. Dr. Death was going to arrange for facet injections at L4-5 on the right side to see whether that improved the Appellant’s pain picture;
2. In his August 5, 2011 report to Dr. Chapeskie, Dr. Death reports that the Appellant’s problems are low back pain and right sciatica. He noted that the Appellant had marked loss of internal rotation of the right hip. He had a trial of gravity traction which Dr. Death reported as helpful. Dr. Death reported that the Appellant had lost fifteen pounds which was helpful also;
3. Dr. Death’s December 9, 2011 report notes the Appellant’s problems as low back pain, increasing thoracolumbar junction pain and resolving right sciatica. He reported that while the Appellant did not notice much difference from the facet injection on October 18, 2011 his right sciatic pain had, by and large resolved. He recommended Dr. Chapeskie prescribe tramacet and suggested a referral to Dr. Bellingham for bilateral facet injections at T11-12 and T12-L1 mainly diagnostically but also hopefully therapeutic. When asked about this at the hearing, the Appellant testified that his sciatic pain did not resolve and the facet injection did not help.
4. In October 2012 Dr. Death recorded that facet injections the previous year were of minimal help. Dr. Death reported that the Appellant complained of a rash and thought his prescription of tramacet might have been the cause. Dr. Death recorded that the Appellant had reduced his weight from 233 pounds to 211 pounds. Dr. Death recommended a course of Percocet and suggested a follow-up in January 2013 at the request of Dr. Chapeskie. It does not appear that Dr. Death saw the Appellant after October 2012.

[19] Dr. Chapeskie saw the Appellant on October 22, 2012 and recommended Cymbalta rather than Percocet. According to the Appellant Dr. Chapeskie will not prescribe narcotics for non-cancer pain. The Appellant saw Dr. Chapeskie again on November 21, 2012 and reported that the Cymbalta didn’t take away the pain but enabled him to do housework. He reported exercising four to five times a week up to 15 minutes on a tread climber and 15 minutes on another machine. It was noted that he was going to see a back specialist.

[20] The Appellant returned to Dr. McCalden for a six month post-operative checkup on January 8, 2013. Dr. McCalden reported that the Appellant still had some discomfort that he attributed to the Appellant’s lower back problem. He complained of very occasional soreness in his right hip when he exercised for a long period of time. At that time the Appellant reported that he did regular exercises on a treadmill for about 25 minutes every day and had been strengthening his lower leg muscles. He reported that he had lost 25 pounds since the operation in July 2012. He was to return at the one year anniversary in July 2013.

[21] In his July 2013 report Dr. McCalden records that the Appellant reported almost no pain in the right hip and had great functioning from that standpoint but that he continued to have sciatic and back pain but is on Cymbalta now to help with that. Dr. McCalden noted that the Appellant told him his 25 pound weight loss was due to exercise.

[22] The Appellant returned to see Dr. McCalden on July 15, 2014 and reported that he was completely symptom free and was doing his day to day activities with a lot of ease. He reported that his only concern was his longstanding sciatica.

[23] The next and only other record of back pain in the clinical notes of Dr. Chapeskie is dated September 17, 2014. In that note the Appellant reports that the pain is about the same and the Cymbalta helps. Dr. Chapeskie notes “Endurance during the day is 1 – 1.5 hour of any type of house or yard work…Having some sciatica on both sides off and on.”

[24] Dr. Chapeskie prepared a letter to Mr. Yormak dated September 1, 2015. In it he reports that the Appellant was not able to sit for more than 30 to 45 minutes; no prolonged walking or standing; no lifting more than five kg., no repetitive twisting or bending of the back. At that time he continued on Cymbalta. Dr. Chapeskie noted that the Appellant’s medical condition precluded his ability to engage in any substantially gainful occupation and that his condition is severe and prolonged. He noted the Appellant had been to a pain clinic and all medical options had been explored.

[25] The Appellant testified about the motor vehicle accident in which he was involved in 1994. He had a delivery route and drove one of the delivery trucks. He testified that he injured both hands and had a cracked wrist; he injured his back and also his left eye. The Appellant was off work for a year and then returned on graduated hours doing office work. After three to four months he was back to working full time but he stayed in the office working the front desk or as a truck dispatcher. In 1999 he was promoted to sales support. He looked after nine sales people doing telephone and paper work. While he was working in the office, his boss knew of his restrictions and he could stand or sit as he wanted. Also while he was in the office he learned Word and Excel. He did this until 2009 when the company downsized and he was moved back to the front counter. He testified that in this role he had to get compressed gas cylinders for walk in customers. The cylinders weigh between 80 and 180 pounds and the Appellant found it a highly physical job. He kept throwing his back out but he tried to work through the pain until March 2010 when his family doctor told him to stop working due to the pain.

[26] He testified that he was referred to physiotherapy from March to May 2010 but that made it worse. The facet injections did not improve his situation.

[27] The Appellant took the Tribunal through a typical day. He testified that he rises at 7 am after a restless sleep during which he wakes every two to three hours trying to get comfortable. He will make a cup of tea upon rising and go out for a cigarette. He will then watch TV or read in his reclining chair. He eats breakfast between 9:30 and 10 am and then will go out for another cigarette. If the day is nice he will putter in his garden for half an hour. He testified that he gets on his knees, his back is horizontal and he pulls weeds. After half an hour the pain increases and he goes to lie down in the recliner again.

[28] It is then time for lunch. He barbeques a sausage, burger or fish fillet and eats it with a salad. Around 1 p.m. he is back in the recliner watching TV or reading. If his pain allows he walks to the mail. He testified he tries to do this every day. Also everyday he putters away cleaning a section of his house. He tries to clean a room at a time but he has to take many breaks and lay down. He will then return to his reclining chair. At 5 or 6 p.m. he will barbeque a chicken breast and mixed vegetables and then, after dinner, it is back to the recliner to watch TV or read until bed at 11 p.m.

[29] The Appellant testified that the more he sits the more his pain level increases and that his doctor has told him to just keep moving, to try to keep active and not to lie around all day.

[30] The Appellant was asked if he had the simplest, most sedentary job could he guarantee his attendance five days a week. The Appellant answered he could guarantee that he would arrive at 9 a.m. one or two days a week at the most. He could then work for 40 minutes or an hour before he had to lie down. He would have to lie down for two or three hours and then he could sit and work for another 40 minutes to an hour. He testified that he hasn’t looked for a job since 2010 because he doesn’t think he can work a full eight hour day.

[31] The Appellant was asked to describe his condition in December 2013. He answered that he had pain in intensity from 5 – 7 out of 10 every day. The pain is radiating, pulsing pain that affects his pelvic region and legs. He testified he might get pain down his left leg but not his right some days but every day he has pain in at least one leg. He testified that the left leg is worse than the right and that the pain is more often and more intense in the left. If he has pain in both legs, he testified that it is probably because he walked too far the day before. He testified that 500 feet would be too far and that he can comfortably walk 250 feet. In December 2013 he was still walking with a cane and the Appellant testified he still always has it with him as support for his back and pelvic area and because his legs give him pain.

[32] The Appellant testified that he can sit for about half an hour without pain but that when he sits too long the pain level goes up. His legs fall asleep.

[33] He testified that he has to lay down for most of the day. He usually stays in a reclining chair for most of the day in two hour increments. He also can’t stand for any length of time. He can’t do repetitive motion:  twisting or bending; and if he reaches (like into the fridge) his pain will go up.

[34] The Appellant also complained about aching in his hands which affects his use of them every day. Repetitive motions with his left or right hand exacerbates the pain and if he writes for more than five minutes his left hand cramps.

[35] The Tribunal asked the Appellant to elaborate on the exercises he does. The Appellant testified that he has a Bowflex tread climber and a Bowflex XLT. The tread climber is like a cross between a tread mill and a stair climber. The Appellant uses this on Mondays, Wednesdays and Fridays for thirty minutes as his pain allows. The Bowflex XLT is like a home gym and allows the Appellant to use pull rods that are under pressure to increase strength. The Appellant testified he pulls between 10 and 25 pounds working his chest and arms with his back supported. He testified that he does this on Tuesdays and Thursdays as his pain allows also for thirty minutes.

Submissions

[36] The Appellant submitted that he qualifies for a disability pension because:

1. He has intractable lower and thoracic back pain that has not responded to all recommended treatment which renders the Appellant incapable of all gainful employment; and
2. Because this is a chronic pain case the degree of pain experienced by the Appellant is the critical issue; the credibility of the Appellant is important and no one suggests that he is exaggerating or malingering.

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

1. Although some symptoms of back pain and activity restrictions may remain, the medical evidence does not support a severe pain condition that would preclude all work.

Analysis

[38] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability on or before December 31, 2013.

Severe

[39] In this case the physical complaints of the Appellant were long standing, having been caused by a motor vehicle accident in 1994. His injuries included a left eye contusion and laceration of the periorbital region; compression fractures from T10 through L1; fracture of the left thumb; laceration of tendon and nerve of the left wrist and laceration of right wrist tendons.

[40] After an absence or reduced hours over eighteen months in 1994 and 1995 the Appellant was able to return to modified duties. Rather than the physically demanding job of being a delivery driver the Appellant was placed in an office position. There he learned computer skills, dispatching skills, and ultimately management skills supporting nine sale people. It appeared that the Appellant had been able to transition from a physically demanding occupation to one that accommodated his restrictions.

[41] Unfortunately, in 2009 his employer restructured its workplace and the Appellant was now responsible to physically transport heavy gas cylinders to customers’ vehicles. This led to a re-injury in 2009 of the Appellant’s lower back and his physician’s advice that he stop work in March 2010.

[42] The Tribunal accepts that the Appellant’s condition did not allow him to continue working in a position that would require him to carry objects weighing between 80 and 180 pounds as was the requirement at X. The Tribunal considers the issue in this case to be whether his condition precluded the Appellant from regularly pursuing any substantially gainful occupation.

[43] 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.

[44] The Tribunal notes that the Appellant has many skills that would transfer to a sedentary occupation or one requiring only light intensity activity. The Appellant has his secondary school diploma and a college diploma in Construction Engineering Technology Management. He has worked with customers on the front desk at X and also as a truck dispatcher for the company. He has worked in sales support, assisting nine sales people, doing telephone and paper work.  He has been trained in Word and Excel. The Tribunal finds that the Appellant has the kind of transferrable and marketable skills that would allow him to transition from a physically rigourous job to a sedentary one.

[45] The Appellant testified that he could not work in a sedentary position. He was asked whether he could “guarantee” his attendance five days a week at the simplest, most sedentary job and he answered he could not.  While the Tribunal appreciates that the question and answer were meant to convey that the Appellant could not attend at a job with the predictability and reliability the competitive economy requires the Tribunal was not presented with any objective evidence as to why the Appellant could not work at a position that allowed him to alternate between sitting and standing. Where there is evidence of work capacity, a person must show that effort at obtaining and maintaining employment has been unsuccessful by reason of the person’s health condition (Inclima v. Canada (A.G.), 2003 FCA 117). In this case the Appellant has not tried to work in a sedentary occupation since he left X.

[46] The Appellant’s legal representative asserted that because this was a case of chronic pain the evidence of the Appellant was paramount. He pointed out that none of his treating physicians had suggested that the Appellant was exaggerating or malingering and on this basis submitted that the Tribunal ought to accept the Appellant’s complaints and allow his appeal.

[47] The Tribunal considered all of the documentary evidence together with the testimony of the Appellant and found significant inconsistencies:

1. The Appellant asked for a referral to a back surgeon in October and November 2012 and yet no referral was made; the fact that the Appellant did not follow up on his requests suggests to the Tribunal that his back problem was not as significant as he would have the Tribunal believe;
2. The Appellant testified that he experiences pain if he reaches into his refrigerator but he testified he is able to regularly get down on his hands and knees and pull weeds in his garden;
3. The Appellant testified that he cannot stand for any length of time (a half hour at the most) but he is able to regularly spend a half hour exercising on a Bowflex tread climber; in January 2013 the Appellant reported that he did regular exercises on a treadmill for about 25 minutes every day (paragraph 20);
4.  The Appellant stated in his questionnaire dated February 22, 2012 that he had difficulty lifting or carrying more than five pounds; at the hearing he testified that he can lift a weight of 15 to 20 pounds but only once and that if he lifted that weight more than once his pain would increase significantly. However he also testified that he was regularly lifting weights of between 10 and 25 pounds on his Bowflex XLT. This may be an improvement in his condition rather than an inconsistency but it is still inconsistent with a disability;
5. The Appellant testified that it is 500 feet to his mailbox and that if he walked that distance he would get pain in both legs the next day because 500 feet is too far for him to walk; he also testified that he tries to walk to the mail every day; he also testified that he uses the Bowflex tread climber every other day for a half an hour. Evidence that the Appellant cannot walk more than 500 feet is inconsistent with evidence that the Appellant is improving his physical condition and is regularly using a treadmill.
6. The Appellant testified that his hands ache all the time and have done so since the time of the original accident in 1994. The Appellant testified that he can only write for five minutes before his left (dominant) hand cramps. There is no reference in the extensive medical record that the Appellant ever complained about that issue before he attended the hearing and the Tribunal considers that this evidence is inconsistent with the Appellant’s ability to perform office work from 1999 to 2009.

[48] There is very little objective evidence that supports the Appellant’s position that he was incapable of employment after about January 2013. The right hip replacement had been a success six months earlier. The Appellant was reported to be performing regular treadmill exercises for about 25 minutes every day; he had lost 25 pounds since the hip surgery.  

[49] The Appellant returned to see Dr. McCalden on July 15, 2014 and reported that he was completely symptom free and was doing his day to day activities with a lot of ease. He reported that his only concern was his longstanding sciatica.

[50] The Tribunal considered Dr. Chapeskie’s report to the Appellant’s legal representative dated September 1, 2015. Dr. Chapeskie states that the Appellant should not sit more than 30 to 45 minutes and cannot undertake prolonged walking or standing. A sedentary position could accommodate those limitations and the Appellant has transferrable skills that enhance his ability to perform sedentary work. Although Dr. Chapeskie considered the Appellant’s medical condition precluded his ability to engage in any substantially gainful occupation and was severe and prolonged Dr. Chapeskie does not say why he considers this to be the case.

[51] The Tribunal finds that the Appellant had the physical ability to regularly to pursue a substantially gainful occupation, including sedentary or part-time work on December 31, 2013. As such the Appellant was not severely disabled according to the legislation at the MQP of December 2013.

Prolonged

[52] Since the Tribunal found that the disability was not severe, it is not necessary to make a finding on the prolonged criterion.

Conclusion

[53] The appeal is dismissed.