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Reasons and decision
Overview
[1] This case is about whether an appellant can rely on the maximum retroactivity provisions under paragraph 42(2)(b) of the Canada Pension Plan to be deemed disabled earlier than the actual date of onset of disability, and hence, receive payments based on the earlier deemed date of disability.
[2] The General Division determined that the Respondent has a severe and prolonged disability and that she became disabled in May 2013, when she stopped working due to chronic back pain. The Respondent had filed her application for the disability pension in September 2013. Under paragraph 42(2)(b) of the Canada Pension Plan, the General Division deemed the Respondent disabled in June 2012 and determined that payment of a disability pension should commence as of October 2012, four months after the deemed date of disability. The Appellant filed an Application Requesting Leave to Appeal to the Appeal Division, on the basis that the General Division erred in law in its application of paragraph 42(2)(b) of the Canada Pension Plan and that it thereby erred in its calculation of the effective payment date. I granted leave to appeal on September 16, 2016.
[3] Both parties having filed submissions, and determining that no further hearing is required, this appeal is proceeding pursuant to paragraph 43(a) of the Social Security Tribunal Regulations.
Submissions
[4] The Appellant does not contest the finding of disability. However, counsel for the Appellant submits that the General Division erred in applying the maximum retroactivity provisions of paragraph 42(2)(b) of the Canada Pension Plan and in deeming the Respondent disabled 15 months before she made her application for a disability pension. The Appellant argues that, under paragraph 42(2)(b) of the Canada Pension Plan, the earliest that the Respondent could be deemed disabled was May 2013, when she in fact became disabled. Furthermore, pursuant to section 69 of the Canada Pension Plan, payment of a disability pension therefore would commence four months later in September 2013.
Analysis
[5] The Appellant indicates that the General Division correctly noted that the Appellant received the Respondent’s application for a disability pension in September 2013.
[6] Paragraph 42(2)(b) of the Canada Pension Plan provides that, “in no case shall a person … be deemed to have become disabled earlier than fifteen months before the time of the making of any application”. In other words, the maximum retroactivity permitted under the Canada Pension Plan is 15 months prior to the date of application. However, it does not follow that the maximum retroactivity provisions under the Canada Pension Plan are applicable in all cases. As the Appellant notes, it is trite law that an individual cannot simultaneously contribute to the Canada Pension Plan and at the same time receive a Canada Pension Plan disability pension. In this particular case, as the General Division determined that the Respondent was regularly and substantially gainfully employed from June 2012 until she stopped working in May 2013, she cannot avail herself of the maximum retroactivity provisions, and the earliest that she could be deemed to be disabled is the date when she stopped working in May 2013.
[7] The Appellant submits that, based on the erroneous deemed date of disability, the General Division further erred in its determination of the effective payment date, pursuant to section 69 of the Canada Pension Plan, identifying the effective date of payment as October 2012. The Appellant further submits that, as the Respondent should have been deemed disabled in May 2013, the correct effective date of payment would be four months later, in September 2013.
[8] Submissions were filed on behalf of the Respondent on December 2, 2016. She argues that “it was open to the General Division to make a finding of the date of disability on [its] own”, pursuant to section 42(2)(b) of the Canada Pension Plan, and that it was also open for it to deem her to have become disabled as early as 15 months prior to its determination as to when she became disabled.
[9] While I agree that the General Division can make findings as to the date of onset of disability, as it did here, it would be an unreasonable interpretation of paragraph 42(2)(b) that a claimant be deemed disabled prior to the onset of actual disability, and that a claimant be entitled to receive a disability pension while he or she is regularly engaged in a substantially gainful occupation. The General Division erred in law by applying the maximum retroactivity provisions in determining the commencement date of payment of a Canada Pension Plan disability pension, without regard to the actual date of onset of disability.
Conclusion
[10] The appeal is allowed and the decision of the General Division is varied in part, by deleting paragraph 39 and substituting the following in its place:
[39] The Tribunal finds that the Appellant had a severe and prolonged disability in May 2013, when she stopped working. According to section 69 of the CPP, a disability pension is payable from the fourth month after the applicant became disabled. Accordingly, payments will start as of September 2013.