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Reasons and decision
Persons in attendance
Z. K. – the Appellant
Paul Sacco – the Appellant’s representative
Introduction
[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on March 17, 2016. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal). The Tribunal received the Appellant’s Notice of Readiness on November 18, 2016 and the Respondent’s Notice of Readiness on January 16, 2017.
[2] The Appellant worked for KCI Medical for five years until November 2015 when he stopped working as he was receiving chemotherapy treatments. He recovered more slowly than expected and was given permission to return to work in December 2016.
[3] 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.
- Credibility is not a prevailing issue.
- 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
[4] 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).
[5] 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.
[6] 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.
[7] The requirement that an applicant not be in receipt of the CPP retirement pension is also set out in subsection 70(3) of the CPP, which states that once a person starts to receive a CPP retirement pension, that person cannot apply or re-apply, at any time, for a disability pension. There is an exception to this provision and it is found in section 66.1 of the CPP.
[8] Section 66.1 of the CPP and section 46.2 of the CPP Regulations allow a beneficiary to cancel a benefit after it has started if the request to cancel the benefit is made, in writing, within six months after payment of the benefit has started.
[9] If a person does not cancel a benefit within six months after payment of the benefit has started, the only way a retirement pension can be cancelled in favour of a disability benefit is if the person is deemed to be disabled before the month the retirement pension first became payable (subsection 66.1(1.1) of the CPP).
[10] Subsection 66.1(1.1) of the CPP must be read with paragraph 42(2)(b) of the CPP, which states that the earliest a person can be deemed to be disabled is fifteen months before the date the disability application is received by the Respondent.
Issue
[11] The Appellant began receiving a CPP retirement pension in January 2017. As such the parties agree that the Appellant must be found to be disabled within the meaning of the CPP on or prior to December 31, 2016, the month prior to the commencement of his CPP retirement benefit.
Evidence
[12] The Appellant was 65 years old at the time of the hearing. He is married. He finished high school and attended 6 years of university in Pakistan obtaining an MBA in Human Resources.
[13] The Appellant’s previous work history includes working in the Human Resources department of the government. He came to Canada in 2000.
[14] When the Appellant arrived in Canada he found it difficult to find jobs in the human resources field despite his past experience and degree. In 2001 he attended school at Sheridan College in his field and while there worked as a security guard. Through different employment agencies he obtained work. He worked for the Metropolitan Hotel for 5-6 years as a guest relations representative until he was laid off.
[15] The last place the Appellant worked was from July 2010 to November 2015 for KCI Medical. He was involved with clean up, quality control and delivery of medical material. He was a field services representative.
[16] The Appellant was diagnosed with leukemia in 2009 but his symptoms did not warrant treatment until November 2015. He was started on chemotherapy, which was completed in May 2016. He described being left feeling very exhausted from the chemotherapy, and was told that he would need at least 4 months to recover. He advised the Respondent that he expected to return to work in September or October 2016. (GD2-44)
[17] Dr. Kwan monitored the Appellant regarding his chemotherapy. In June 2016 he determined he would see the Appellant in 8 weeks, as he was still symptomatic from his treatment. (GD4-8) In August when he saw the Appellant he noted that he was in remission but still being affected by symptoms of fatigue, lethargy and myelosuppression. (GD4-9)
[18] The Appellant reports that the treatment caused him to be very lethargic and tired. He slept more and was in general very weak. He did not have the stamina for most activities. He was told that they predicted he would recover by August 2016 but this was based on an average. He was monitored every month.
[19] Dr. Shorey, Endocrinologist, saw the Appellant in August 2016 regarding his insulin dependent diabetes. He notes the Appellant’s blood sugars are very well controlled. He opined that in the future he may be able to reduce the Appellant’s insulin and change him to other oral agents. He is monitoring the Appellant’s high blood pressure and prescribed a medication for this condition. (GD4-10)
[20] The Appellant was on short-term disability, which changed to long-term disability. Dr. Tasmeem, Family Physician, wrote completing the forms that the Appellant’s prognosis was guarded but he expected that he would return to work in August 2016. (GD3-5)
[21] The treatment caused the Appellant to feel very weak and lethargic. In October 2016 Dr. Kwan reports the Appellant was feeling a bit weak at times and had one day of fever. His strength, energy and appetite are fine. No changes were made to any treatment or medication at this follow-up visit. (GD4-17)
[22] Dr. Tasneem’s clinical notes show the Appellant had shingles in October 2016. He used Valtrex for one week. In late October the Appellant was prescribed Lyrica 50 mg twice a day. He diagnosed this as a post-herpatic neuralgia. The Appellant was noted to be feeling down and depressed in November 2016. The Appellant recalls that he was feeling much better in November but to be on the safe side it was decided that he would not return to work until December 2016.
[23] The Appellant testifies that in December 2016 he was feeling much better. He was OK and advised his long-term disability provider that in December that he was returning to work.
[24] Dr. Tasneem wrote to the Appellant’s employer that he could return to work on December 21, 2016 on a modified program for 3 hours a day. He restricted the Appellant to 45 minutes of standing and driving no more than 30 minutes. He was going to review the restrictions in 6 months. (GD4-21)
[25] The Appellant’s employer required the Appellant to be assessed by their Work Well team to assess his physical abilities for work before he could return to his duties. Due to the holiday season and their schedule this assessment did not take place until January 6, 2017. The Appellant started working 3 hours a day for 4 weeks and then increased his hours per day. He is now working 6 hours a day from 8 AM to 2 PM. He reports that he has not missed any work. He plans to continue to work with no particular date set for retirement.
Submissions
[26] The Appellant’s representative submitted on his behalf that he qualifies for a disability pension because:
- The medical evidence shows the Appellant had a severe and prolonged condition when he stopped working in November 2015 up until the MQP of December 2016. That is the only time period to be considered because after that the Appellant turned 65 years old.
- The Appellant was under active medical treatment up until December 2016. He was not able to work due to his functional limitations during that time period.
- Although he was optimistic to return to work in August 2016 he was not recovered by that date and he continued to have active treatment. He was not cleared to work until December 21, 2016. The company would not allow him to come back to work until the company cleared him, which didn’t occur until January 2017. During that time there was no other alternative work that he would have been capable of doing with his skills.
- He has returned to work but he does not have to show he has a prolonged disability after December 31, 2016 because he is 65 years old, which is the last time he qualified.
[27] The Respondent submitted that the Appellant does not qualify for a disability pension because:
- The Appellant had a recurrence of his cancer in November 2015, which required treatment that was completed in July 2016. His condition improved and he required no further treatment.
- The Appellant was cleared to work on a modified and graduated basis in December 2016.
- There was no change or deterioration in the Appellant’s diabetic condition.
Analysis
[28] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability within the meaning of the CPP on or before December 31, 2016.
Severe
[29] The Appellant was a very credible witness who was forthcoming and detailed in the information he provided. He had a good recall of the events of his condition and treatment that had occurred in the last year.
[30] 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.
[31] The Appellant is 65 years old but is well educated and has experience in several different employment settings. He is proficient in English and plans to continue to work past the age of 65. In considering the Appellant’s personal characteristics the Tribunal is clear that these factors would not permit a finding of severe.
[32] The measure of whether a disability is “severe” is not whether the person suffers from severe impairments, but whether his or her disability prevents him or her from earning a living. The determination of the severity of the disability is not premised upon a person’s inability to perform his or her regular job, but rather on his or her inability to perform any work (Klabouch v. Canada (Social Development), 2008 FCA 33).
[33] The Appellant was clearly unable to work while receiving chemotherapy and for several months after the treatment was completed. Once completed the Appellant was monitored monthly by his physicians. It is reasonable that it took many months for the Appellant to regain his strength and the Tribunal agrees the prediction of when that would occur is based on an average.
[34] The Appellant’s representative submits that the Appellant was continuing to receive active treatment after he was unable to return to work in August as predicted. The Tribunal acknowledges that the Appellant took longer to recover than expected but does not consider monitoring of his condition on a monthly basis as active treatment. He was however in the recovery phase after his chemotherapy treatment was completed in May 2016. Although the Appellant was not able to return to his previous work as quickly as it had been predicted, he was ready to return to work in December 2016.
[35] The Appellant testified that he was capable of returning to his previous work in December 2016. He advised the insurance company of this and his physician provided him with a medical note indicating his return to work date would be December 21, 2016. The Tribunal is not persuaded that because the company could not assess him, as per their protocol, until January 2017 he was not capable of working until that time.
[36] It is submitted by the Appellant’s representative that during December 2016 there was no other alternative work that he would have been capable of doing with his skills. The Tribunal considers the Appellant to have many transferrable skills and he would likely have been capable of many different types of employment in December when he testified that he was feeling well by that time. It is understandable that he would like to return to his previous employer, which he did. He continues to work for them on a regular basis of 6 hours per day with no need of recurrent absences.
[37] The Tribunal has carefully reviewed the medical reports and listened attentively to the evidence of the Appellant. The Tribunal finds that, on a balance of probabilities, it has not been persuaded that the Appellant had a severe disability within the meaning of the Act by December 31, 2016.
Prolonged
[38] For the Appellant to qualify for a disability benefit, the Tribunal must be satisfied not only that the mental or physical disability is “severe”, but also that it is “prolonged.” To make such a finding, there must be sufficient evidence to establish that the disability is both “long continued” and “of indefinite duration”, or is likely to result in death.
[39] The Appellant’s representative submitted that the Appellant does not have to show he has a prolonged disability after December 31, 2016 because he turned 65 years old in January 2017 which is the last time he qualified.
[40] Even if severity had been established the prolonged factor still has to be shown that it is both “long continued” and “of indefinite duration”. The Appellant was capable to return to work in December 2016 and had completed the treatment and recovery for his condition. The Tribunal has no indication from either the Appellant’s testimony or medical documents reviewed that his condition was expected to be long continued or of indefinite duration.
[41] The Tribunal does not accept the Appellant’s submission that the prolonged factor does not have to be addressed in this situation.
[42] The Tribunal finds that the disability was not prolonged within the meaning of the Act by December 31, 2016.
Conclusion
[43] The appeal is dismissed.