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Reasons and decision
Persons in attendance
J. B. (Appellant)
Tami Cogan (Appellant’s Representative)
K. S. (Observer)
Introduction
[1] The Appellant’s current application for a Canada Pension Plan (“CPP”) disability pension was date stamped by the Respondent on September 23, 2014. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (“Tribunal”). The Appellant previously applied for a CPP disability pension in July of 2009. The Respondent denied the application initially and upon reconsideration. The Appellant did not appeal that previous reconsideration decision.
[2] The hearing of this appeal was by Teleconference for the following reasons:
- There are gaps in the information in the file and/or a need for clarification.
- 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] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 2006. The Tribunal must therefore decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before the MQP date.
Evidence
[7] The Appellant is 58 years old and, until the end of June, had lived at all material times in X, Ontario with his wife. They recently moved to her parents’ house in X, Alberta, as his wife lost her full-time job with the Ontario Lottery Commission in April of 2016. She had worked there full-time throughout their residency in X. The Appellant has a Grade 13 education as well as a 2 year police foundation diploma from Seneca College and 1996 Flight Attendant training from the Ministry of Transport.
[8] In his 2014 application materials for CPP disability benefits, the Appellant described his condition as severe and prolonged back and shoulder pain. His 2009 application materials described his condition as a number of lumbar and cervical fusions due to ruptured discs in a car accident, a permanent 3rd degree separation of his left shoulder, and upcoming surgery to remove dead bone in his left hand. In both of his applications, he indicated that he was no longer able to work due to his medical condition on February 28, 2002.
History
[9] While all documentary and oral evidence has been considered, only the most relevant evidence is specifically set forth here.
[10] The Appellant worked as a first responder and a SWAT team member with the Edmonton Police from 1979 to 1993. He resigned due to stress; at the same time, his first marriage broke down. He considers his police work to have been his preferred and main career. He then worked as a flight attendant for Royal Air for approximately 18 months; this employment ended due to restructuring when the company was sold. He said that his next job was with Goodlife Fitness. The Appellant’s application materials indicated that he commenced employment with Goodlife on June 1, 2000.
[11] A defining moment in the Appellant’s life was a serious car accident that took place in 1998. He said his right side was paralyzed and he could not use his right arm. As a result, he had herniated discs in his spinal cord and lower back problems. He had surgery on his neck in Sudbury but his lower back injury was treated conservatively. He said that he took Celebrex as an anti-inflammatory agent until it began compromising his kidney function. He said that he then was unable to walk without crutches or a cane and would be bedridden for periods of 3-4 weeks until his back “released itself”. On one occasion, he said he had to go to hospital by ambulance and this resulted in a referral to Dr. Yen (described in more detail below).
[12] According to the Appellant’s application materials, he remained employed at Goodlife until February 28, 2002, when he was unable to complete his shift due to pain. However, at the hearing, the Appellant said that his last day of work was actually in 2003, when he worked for two months at Gananoque Chevrolet Oldsmobile. This was a desk job where he would contact customers whose car payments were ending: he would try to get them to buy another car. He said he stopped after two months due to chronic pain. The earning and contribution summary submitted by the Respondent indicates that the Appellant earned $35,928 in 2002 and $5,787 in 2003. The Appellant’s Questionnaire disclosed a salary of $40,000 at Goodlife; at the hearing, he clarified that his compensation was mostly commission but also had a base salary component.
[13] The Appellant denied engaging in any other work or earning any other income after 2003, other than a brief three-week attempt to work part-time in the summer of 2015 at the Glen Lawrence Golf Club. At that time, he operated the barbecue at the “Snack Shack” and was seated throughout; he said his shifts never lasted more than two hours. He said that a friend facilitated the work attempt. He was not asked back after missing 1-2 months due to an injury.
[14] At the hearing, the Appellant stated that, in approximately 2004, his wife acquired a building with residential space as well as a business called Gananoque Family Fitness. He said that she owned and ran the business, in addition to her full-time job, because they wanted to generate a second income for the family and he was not working. The fitness centre appears to have been operated through a corporation of which the Appellant’s wife was president. He said that he had no role in the business and she took all the profits from it; however, he also said that he was paid a dividend during one year. He could not recall when this dividend was paid. He also said that the business was run by hired employees: there would be one at a time but over the years there would have been a total of about 20. He said that the business was sold about one year before they left Ontario in June of 2016.
[15] The first medical evidence is a December 14, 2005 report from Dr. Yen (Orthopedic Surgery), who saw the Appellant for back and right leg symptoms. Dr. Yen noted that the Appellant “is a personal trainer while his wife works in management at the local casino”. The Appellant reported persistent and progressive problems with low back pain that radiated down the right leg to the foot, along with some numbness in the right calf and foot. The pain was aggravated by prolonged standing, walking or sitting and he reported needing to constantly shift between the three. The Appellant walked with a limp. As a recent MRI disclosed some spinal issues, Dr. Yen proposed a two-level lumbar posterior decompression with discectomy and one- level fusion. The Appellant agreed to this and the surgery took place on February 9, 2006: the diagnosis at the time was lumbar spondylosis.
[16] When asked about the personal trainer reference at the hearing, the Appellant said that he was able to get his certification while still employed at Goodlife. He said that he did this solely to conduct his own personal therapy. He denied that he was working as a personal trainer, stating that he could not help people lift weights. He said that he bought a TENS machine and massage equipment for self-care: he did therapy on his own for reasons of cost-effectiveness.
[17] On February 12, 2006, the Appellant was discharged home by Dr. Yen and told that he could stand, walk and sit as tolerated but should avoid back exercises and heavy or repetitive use of his lumbar spine for the next three months. Two months later, on April 4, 2006, Dr. Yen confirmed that these restrictions should remain in place for a month. The Appellant reported then that his leg symptoms had improved since surgery but still had back pain with activity, although he had discontinued use of his medication. He walked without a limp and Dr. Yen wrote that he was making steady progress in his recovery.
[18] The next medical documentation is a November 15, 2006 orthopedic consultation by Dr. Andrew Pickle. Dr. Pickle saw the Appellant for a left shoulder injury that took place 5 years before when a large friend of the Appellant’s grabbed him and fell directly onto his left shoulder. The Appellant said that he had done well for three years (being treated with physical therapy) but then started experiencing worsening discomfort. He could not sleep on that shoulder because of the pain. Dr. Pickle noted that “he owns his own gym and lifts a lot of weight and he has to limit his activities because of his shoulder”. Dr. Pickle diagnosed a chronic AC joint separation and said that he would need to see the x-rays before determining if there was a surgical option. If not, he would recommend physical therapy for stretching exercises to regain the rest of his range of motion. However, there is no follow-up from Dr. Pickle in the file.
[19] The Appellant was asked at the hearing about Dr. Pickle’s reference to owning his own gym and lifting a lot of weight. He replied that he told Dr. Pickle he had to train every day in his previous police job and had therefore lifted a lot of weight in his life. The Appellant also suggested that, as his wife owned a gym, he was bragging that (as her spouse) he owned it too. As for the lack of a documented follow-up, the Appellant said that Dr. Pickle was unable to do the surgery required and referred to Appellant to Dr. Bicknell, although there is no documentation from Dr. Bicknell in the file. The Appellant said that Dr. Bicknell ultimately replaced the left shoulder in 2010 and intended to replace the right shoulder as well after the Appellant turned 60. The Appellant also said that there was wrist reconstruction surgery at some point in 2006 or 2007.
[20] At the hearing, the Appellant said that in late 2006 he could hardly use his arms or his right hand, used crutches or a cane to walk, and would periodically be bedridden for 3-4 weeks at a time before he could walk again. He said that everything was a problem for him and he could only remain in one seating position for 4-5 minutes before needing to change, could only sleep for an hour at a time before needing to wake up and change positions, and could walk only 30 steps before pain set in. He had to stretch to make the pain stop and had to change positions all the time. He said these symptoms continued today although they were worse in 2006.
[21] There is no further medical documentation until a spinal MRI from October of 2008: this showed mild degenerative disc disease from L3-4 through L5-S1, severe facet osteoarthritis bilaterally at L3-4, moderate to severe acquired central spinal stenosis at L3-4, left lateral disc protrusion at this level with L3 nerve root impingement, annulus tears involving L4-5 and L5-S1 discs, and focal disc protrusion at L5-S1 into the left lateral recess with S1 nerve impingement. When asked about the gap between November of 2006 and October of 2008, the Appellant said that he was going to a pain clinic for epidurals and was also going from surgeon to surgeon because Dr. Yen would not help. The Appellant said he contemplated suicide during this period.
[22] The Appellant saw Dr. Yen again on January 22, 2009 and complained mainly of low back pain. He also mentioned numbness in the lower back. The pain in the right leg became pain in the left leg after the 2006 surgery. Dr. Yen observed a normal gait. Dr. Yen’s impression was mainly back pain with intermittent sciatic pain; he preferred non-operative management. In the April 4, 2009 Medical Report of Dr. Dubois (Family Physician), there was a diagnosis of degenerative disc disease at L3-4 with intermittent sciatic pain. Her prognosis was that this was a chronic condition and the Appellant would have persistent chronic pain with intermittent flare-ups and sciatic pain.
[23] In a Questionnaire dated September 15, 2009, the Appellant wrote that he could not sit or stand for any period of time, could not lift anything, could not lift his left arm above the shoulder, had severe pain in the right hand from dead bone (to be operated on in October of 2009) and had severe pain in the lower back and neck.
[24] Subsequent to CT scans of the spine in August of 2010, the Appellant saw Dr. Yen again on November 16, 2010. He complained of low back pain and left sciatica flare-ups that occur monthly “and are of such severity that he is bedbound essentially for 2 weeks at a time.” Dr. Yen remarked that the Appellant had shoulder surgery in April of 2010 and had neck pain and spasm (constant) since then. Dr. Yen then wrote that, despite these issues, the Appellant “continues to work at the front desk of his business”. However, Dr. Yen once again preferred not to operate. He wrote that the Appellant requested a referral to a pain clinic, although the Appellant vehemently denied this at the hearing. It appears from the documentation that the Appellant began seeing Dr. David Smith at the Kingston Orthopedic Pain Institute in December of 2011; the Appellant was unsure about when he started treatment. He did state that because of the multiple surgeries and extensive medication, it was a little difficult for him to remember the exact order of events.
[25] When asked at the hearing about working “at the front desk of his business”, the Appellant denied working at the front desk of his business. He said it was his wife’s business and was located in the same building they lived in. He said that he could see the front desk employee via a security camera screen that was set up at his bed. He denied ever being an employee.
[26] Notwithstanding Dr. Yen’s 2010 opinion, Dr. McBroom (Orthopedic Surgeon) opined on September 18, 2013 that there was a surgical option and it appears that the Appellant underwent a lumbar decompression with fusion and instrumentation in early December of 2013. Although it does not appear in the documentation, the Appellant said that Dr. McBroom described it as the “worst case of stenosis that he had ever seen as a surgeon” and it was only the Appellant’s prior athletic history that allowed him to do anything at all.
[27] On May 23, 2014, Dr. Faris (Electromyogram Clinic) reported that the Appellant had good relief of his chronic back and leg pain following the 2013 surgery, although a new problem of neck pain (and radiation into the shoulder, upper limb and fingers) emerged when the Appellant awoke from that surgery. Dr. Faris observed that the Appellant was “a really quite fit- looking man consistent with having been a personal trainer” and that his musculature was well preserved in the upper limbs with no focal muscle wasting.
[28] On July 21, 2014, Dr. Dubois provided another Medical Report in support of the current application for CPP disability benefits. She provided diagnoses of severe degenerative disc disease and multiple surgical procedures, with chronic pain to the legs and back and resulting extensive limitations in the activities of daily life. She noted that his sleep was interrupted by pain, he could not do extended walking or standing, and could not carry more than 5 pounds. She felt that his prognosis was poor after multiple surgeries.
[29] There are no subsequent narrative medical reports. However, in his June 26, 2014 Questionnaire, the Appellant said that he had no employment in the past five years. In a CPP Work Questionnaire dated November 23, 2014, the Appellant stated that he had not worked since 2002, was not self-employed and did not own his own business. At the hearing, he indicated that he has had five major surgeries and that, with the recovery time alone, would have been “out” for 3-4 years.
[30] The Appellant said that he now has a tremor and Parkinson’s Disease is suspected although not yet confirmed: he said that he has no fine motor skills. He continued attending the KOPI Pain Clinic, primarily for disc pain injections, until moving to Alberta. He also continued seeing Dr. Dubois until then. He would see her once per month in order to have his narcotic prescriptions renewed. The Appellant does not have a family doctor or specialist in Alberta yet but only just received his health card on the day before the hearing. His current medications include Bupropion (antidepressant), Hydrochlorothiazide (blood pressure), Baclofen (muscle pain/spasms), OxyNeo (pain), Oxycocet (breakthrough pain), Senokot (laxative), Acetaminophen (arthritis), Tamsulocin (prostate), and Pregabalin (Lyrica).
Submissions
[31] The Appellant submitted that he qualifies for a disability pension because:
- Despite having extensive treatment, multiple surgical procedures, and participating in all recommended rehabilitation, he has had little relief from his chronic conditions;
- His condition is progressive, any post-surgical improvement has been marginal, and his medication causes additional limitations;
- He is incapable of regular work in any capacity and cannot be relied on as an employee; and
- He has not worked for 14 years, his personal trainer certification was only obtained to treat himself, and his prognosis is considered poor: his disability is therefore prolonged.
[32] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- He did not have neurological deficits and non-operative management was recommended;
- The family physician did not mention any shoulder issues in her medical report of April 2009 and the medical evidence from the orthopedic surgeon did not support severe pathology or impairment in his reports of 2009 and 2010;
- He had good relief from his chronic back and leg pain following his surgery in December of 2013; and
- Information revealed that he ran a gym and worked despite his limitations after his qualifying period.
Analysis
[33] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability on or before December 31, 2006.
Severe
[34] A person is considered to have a severe disability if he is incapable regularly of pursuing any substantially gainful occupation. 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.
[35] There is considerable post-MQP documentation (only some of which is explicitly summarized above) regarding the Appellant’s symptoms and treatment. The Appellant also gave extensive evidence at the hearing about his limitations and indicated that these limitations existed prior to his MQP date. However, before a finding can be made on the severity of the Appellant’s condition, it is necessary to resolve significant contradictions in the evidence concerning the Appellant’s post-2002 employment.
Post-2002 Employment
[36] In each of his two applications, the Appellant indicated that he stopped working on February 28, 2002. Furthermore, in a Work Questionnaire completed on November 23, 2014, he indicated that he did not work after 2002, was not self-employed, and did not own his own business.
[37] He indicated that the employment ending on February 28, 2002 was a sales manager position at Goodlife with an annual salary of $40,000 per year. However, his record of earnings and contributions disclosed earnings of $35,928 in 2002 and $5,787 in 2003. At the hearing, the Appellant indicated that he had in fact also worked at a desk job for two months at Gananoque Chevrolet Oldsmobile in 2003. Although this information was not provided until the hearing, the Tribunal accepts that the Appellant worked at Gananoque Chevrolet Oldsmobile in 2003 as it is more consistent with his earnings and contributions. The Tribunal also finds that the Appellant likely worked for more than just two months in 2002, as his earnings for that year reflect almost an entire year’s worth of employment. The Tribunal makes no finding on where this employment took place and it is not necessary to do so.
[38] A more difficult contradiction exists between the Appellant’s firm assertion that (until a brief attempt in 2015) he did not work after 2003 and the medical evidence (both pre- and post- MQP) that suggests otherwise.
[39] On December 14, 2005, Dr. Yen noted that the Appellant “is a personal trainer while his wife works in management at the local casino”. On November 15, 2006, Dr. Pickle noted that “he owns his own gym and lifts a lot of weight and he has to limit his activities because of his shoulder”. On November 16, 2010, Dr. Yen wrote that the Appellant “continues to work at the front desk of his business” despite his limitations. On May 23, 2014, Dr. Faris wrote that the Appellant was “a really quite fit-looking man consistent with having been a personal trainer” with well-preserved musculature in the upper limbs.
[40] The Appellant gave evidence about these contradictions at the hearing and, in effect, suggested that each of the doctors involved did not accurately reflect the reality of the situation. He suggested that he only became a personal trainer to treat himself at a reduced cost, and that he never provided training services to anybody else. He suggested that it was actually his wife who owned the gym, that he had nothing to do with its operation, and that he only claimed ownership as a form of bragging. He suggested that his comments about lifting a lot of weight were actually made with reference to his previous career as a police officer. Finally, he suggested that he did not work at the front desk of the gym but instead observed the front desk employee through a video security camera that he could view from his bed.
[41] In each case, the Tribunal prefers the account contained in the objective medical documentation. It is extremely unlikely that multiple medical specialists would separately and significantly, over a period of many years, misrepresent what they have been told by the Appellant about his fitness activities and employment. Their accounts are also objective and contemporaneous, while the Appellant’s direct response to their accounts was not made until the hearing itself. Finally, the Appellant’s explanations are simply difficult to accept: it is hard to see, for example, why a person who claims to have no involvement in the business would have video surveillance equipment installed in his bedroom so that he could monitor the business. The Tribunal therefore finds that the Appellant was a personal trainer for more than just his own treatment, that he owned a gym/fitness centre in 2006, that he lifted a lot of weight in 2006, and worked at the front desk of the fitness centre in 2010.
[42] While further analysis is not necessary on this issue, the Tribunal notes that the Appellant’s other evidence surrounding the fitness centre was also not persuasive and does not assist him. The Appellant contended that the fitness centre was purchased to provide an additional income for the family once he could no longer work. However, the Appellant said that he was not at all involved and that all income went to his wife (who was already employed full-time). From taxation and management perspectives, at the least, this is difficult to reconcile. In addition, the Appellant claimed to have no ownership or other role in the business but also admitted to earning a dividend in one year. It is unclear why a dividend would be paid to someone who has no ownership or other stake in the business. Nor is it easy to accept that the Appellant had no connection whatsoever with the business: while his wife was employed full-time in an unrelated field, he had previous experience working in a fitness centre, was actually certified as a personal trainer, admitted to an intensive physical regime (at least during his employment as a police officer), and, as late as 2014, still displayed an impressive musculature consistent with having been a personal trainer.
Assessing Severity by the MQP Date
[43] The above findings do not necessarily preclude the Appellant from establishing severity prior to the MQP and continuing through to the date of the hearing. It is possible that his work at the fitness centre was so limited that it did not demonstrate capacity to pursue regularly a substantially gainful occupation. However, as the Appellant maintains that he did not work at all, it is difficult to assign any weight to his own evidence in support of such an argument. While it is accepted that the Appellant had no reported income after 2003, he also testified that the business was incorporated and that all money from it went to his wife. As such, the objective lack of documented income is not of great evidentiary value.
[44] It is also true that the Appellant himself reported significant physical limitations by his MQP date of December 31, 2006. However, given the Tribunal’s difficulty with the Appellant’s other evidence pertaining to this period, the Tribunal prefers to rely on the objective medical documentation. The Tribunal observes that none of this evidence explicitly addresses any substantial inability to work: with respect to work, the pre-MQP evidence simply said that the Appellant was a personal trainer, that he owned his own gym, and lifted a lot of weight but was currently limited in that regard due to shoulder problems.
[45] While Dr. Yen’s 2005 and early 2006 evidence supports the existence of back pain and associated radiation into the leg, the leg symptoms appear to have been resolved by the surgery in early 2006. Dr. Yen’s last pre-MQP documentation in April of 2006 simply refers to back pain with activity but also describes steady progress in the Appellant’s recovery from back surgery. Dr. Yen identified a restriction on back exercises and heavy or repetitive use of the lumbar spine, but this restriction was to expire in May of 2006.
[46] While Dr. Pickle briefly noted a fusion-related range of motion limitation with the Appellant’s cervical spine in late 2006, he essentially only addressed the shoulder condition. In fact, there is really no objective evidence directly concerning the back from April 4, 2006 until the October 5, 2008 MRI. The Appellant suggested that he was attending a pain clinic during this time but the documentation indicates that did not happen until 2011; he also suggested that he saw other surgeons because Dr. Yen would not help him, but he was still seeing Dr. Yen in both 2009 and 2010. It is also noteworthy that the April 4, 2009 Medical Report by Dr. Dubois in support of the Appellant’s first application focuses on the Appellant’s back pain and does not even identify his shoulder as an issue. Subsequent evidence is also substantially oriented towards the Appellant’s back pain. With respect to the Appellant’s condition by the MQP date, the Tribunal finds that he likely had some degree of back pain but it was not sufficient to prevent him from working. The only work limitation stated at that time was with respect to his shoulder.
[47] The onus is on the Appellant to establish a severe disability by his MQP date that continues through to the date of the hearing. The Tribunal is not persuaded on a balance of probabilities that the Appellant, who was operating a gym in November of 2006, was incapable regularly of pursuing any substantially gainful occupation by December 31, 2006. He may have been precluded from shoulder-related weightlifting activities at that time but, particularly in light of his strong educational and vocational background, his options were by no means limited to such physically demanding work. There is also evidence that the Appellant continued to work until at least November 16, 2010. Accordingly, the Tribunal finds that the Appellant has not met the onus of establishing a severe disability on or before his MQP date.
[48] Given this finding, it is not necessary for the Tribunal to further consider the substantial post-MQP evidence. It is certainly possible that the Appellant met the definition of severity at later date: for example, by the time Dr. Faris wrote his May 23, 2014 letter, it appears that the Appellant’s work activities were in his past. There also appears to have been an unsuccessful return-to-work attempt in 2015. However, for a claimant with the Appellant’s record of earnings and contributions, the CPP legislation requires the establishment of a severe disability by December 31, 2006. The Appellant has not met that requirement.
Prolonged
[49] Since the Tribunal found that the disability was not severe, it is not necessary to make a finding on the prolonged criterion.
Conclusion
[50] The appeal is dismissed.