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Reasons and decision
Persons in attendance
D. B. Appellant
Introduction
[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on December 11, 2015. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).
[2] This appeal was heard by Teleconference for the following reasons:
- The Appellant will be the only party attending the hearing.
- The issues under appeal are not complex.
- 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.
Preliminary issue
[6] The Respondent in its initial decision of March 18, 2016 and its reconsideration decision of July 18, 2016 stated that the Appellant’s MQP date was December 31, 2013. It was the position of the Respondent that the Appellant did not have a severe and prolonged disability as of December 31, 2013.
[7] The Appellant in his Questionnaire for Disability Benefits that was date stamped December 11, 2015 noted that the last day that he worked was in July 2014. He also noted that he owned and operated his own business from October 24, 2006 to May 1, 2015. The Appellant’s Record of Earnings showed no income after 2013.
[8] On March 2, 2017, the Tribunal Member requested an updated Record of Earnings (ROE) from the Respondent because of the information contained in the Appellant’s Questionnaire for Disability Benefits that mentioned employment and possible income in 2014 and 2015.
[9] On March 3, 2017, the Respondent provided the Tribunal with an updated ROE which stated that the Appellant has no income in 2014 and 2015.
[10] After reviewing the updated ROE, the Tribunal agreed with the Respondent’s position that the Appellant’s MQP date is December 31, 2013. The Appellant had more than 25 years in his contributory period where he had made contributions to the CPP that exceeded the Year’s Basic Exemption. He made CPP contributions above the Year’s Basic Exemption in 2008, 2012 and 2013.
[11] Pursuant to subparagraph 44(2)(a)(i.1) of the CPP, the Tribunal finds that the Appellant’s MQP is December 31, 2013 on the basis that the Appellant made contributions to the CPP above the Year’s Basic Exemption in three of the last six years during his contributory period.
[12] The Appellant was asked about his work history at his hearing. The Appellant stated that he had a Grade 9 education and had worked in the oil industry for many years in different capacities as a labour and welder’s helper. He worked in oil and gas production and tested wells. He incorporated a company in 2006. He was a salesperson. He also operated oil and gas wells and related facilities. He dissolved the corporation on May 1, 2015. The Appellant was operating his company without income. He indicated that he earned $56,640.00 in income in 2014.
[13] The Appellant was advised that his ROE was presumed to be true under subsection 97(1) of the CPP. The Appellant was asked if he wished to adjourn his hearing in order to pursue a rectification of his Record of Earnings under subsection 97(2) of the CPP. If the Appellant earned the income that he claimed to earn in 2014 it would have a significant impact on his MQP date. In fact, the Appellant’s MQP date would be December 31, 2017 if he made contributions to CPP that exceeded the Year’s Basic Exemption in 2014.
[14] The Appellant stated that he thought he was appealing to this Tribunal on the issue of his contributions. He stated in his Notice of Appeal that he made contributions to CPP from 1976 to 2014. He was advised by a representative of the Respondent that he had made valid contributions and should appeal this issue to the Tribunal.
[15] The Tribunal’s jurisdiction is limited by powers granted to it by statute. The Tribunal cannot exercise any form of equitable power in respect of any appeals coming before it (MSD v Kendall (June 7, 2004), CP 21690 (PAB)).
[16] The Appellant requested a reconsideration of the Respondent’s decision that he did not have a severe and prolonged disability as of December 31, 2013 pursuant to section 81 of the CPP. The Respondent again denied that the Appellant had a severe and prolonged disability as of December 31, 2013. It was this decision that the Appellant was appealing to this Tribunal pursuant to section 82 of the CPP.
[17] The powers of the Tribunal relating to CPP appeals are set out in subsections 64(1) and (2) of the Department of Employment and Social Development Act (DESDA), which reads as follows:
- (1) The Tribunal may decide any question of law of fact that is necessary for the disposition of any application made under this Act.
- (2) Despite subsection (1), in the case of an application relating to the Canada Pension Plan, the Tribunal may only decide questions of law or fact as to
- (a) whether any benefit is payable to a person or its amount;
- (b) whether any person is eligible for a division of unadjusted pensionable earnings or its amount;
- (c) whether any person is eligible for an assignment of a contributor’s retirement pension or its amount; and
- (d) whether any penalty should be imposed under Part II of that Act or its amount.
[18] In reviewing sections 81 and 82 of the CPP and subsections 64(1) and (2) of the DESDA, the Tribunal has the jurisdiction to determine the issue of the Appellant’s MQP date as that issue is directly related to whether any benefit is payable to the Appellant under paragraph 64(2)(a) of DESDA. However, the Tribunal does not have the power to rectify a ROE as the ROE is presumed to be true pursuant to subsection 97(1) of the CPP.
[19] The Appellant stated that he was under the impression that he had already tried to rectify his ROE with the Respondent but that he would have to pay $15,000.00 in taxes which he could not afford to do.
[20] The Appellant was advised that the only issue that the Tribunal could determine in this appeal was whether it is more likely than not that he had a severe and prolonged disability on or before December 31, 2013.
Evidence
[21] The Appellant in his Questionnaire for Disability Benefits, date stamped by Service Canada on December 11, 2015 indicated that he had a Grade 9 education. He had been self- employed but stopped working as a result of lower back pain. He described himself as being a commission salesman and an operator of oil and gas wells and related facilities. He last worked in July 2014 and he stopped operating his business in May 2015. The Appellant stated that any and all activities let to chronic and acute pain since he had a fall on December 16, 2014.
[22] Dr. Lindsay Nanninga-Penner in a Medical Report to Service Canada that was date stamped December 11, 2015 stated that the Appellant had been her patient since July 2014. She diagnosed the Appellant with lumbago whose origin was facet and discogenic. The Appellant had mild intermittent back pain since 2002 but the Appellant had experienced a significant worsening of this pain since December 2014. The pain was now constant and was worse with sitting, walking and movement. It was also worse with driving. The Appellant had difficulty with sitting, driving and standing for almost any length of time. He had significant pain most days from doing his activities of daily living, household chores and yard work. There were planned consultations with a spinal surgeon and a physical medicine and rehabilitation specialist. The Appellant’s was taking Tylenol #3, Amitriptyline and Duloxetine.
[23] The Appellant in his Notice of Appeal materials stated that in December 2014, he “experienced a fall in a parking lot and since that time, have been in extreme pain which has gotten progressively worse as time has gone by.”
[24] The Appellant did not provide any medical evidence before his MQP date to the Tribunal. The remaining medical records on file related to the Appellant’s condition after the MQP and so were not relevant to determining disability on or before the MQP date.
[25] A post-MQP medical report authored by Dr. Ray Comeau of the Central Alberta Pain and Rehabilitation Institute on June 29, 2016 confirmed that the Appellant’s health problems dated back to December 16, 2014 when he fell on ice outside a hospital.
[26] The Appellant admitted at his hearing that he was not disabled under the CPP as of December 31, 2013. He continued to work in 2014 and his health issues arose out of injuries he sustained in a fall in 2014. The hearing was then concluded.
Analysis
[27] The Appellant must establish on a balance of probabilities that he had a severe and prolonged disability on or before his MQP date of December 31, 2013
[28] The Tribunal must be satisfied that the Appellant suffered from a severe medical condition before the end of his MQP (Cochran v. Canada (Attorney General), 2003 FCA 343 and Gilroy v. Canada (Attorney General), 2008 FCA 116. The issue in this case is not whether the Appellant had a severe disability as of his hearing date but rather whether he was disabled before the end of his MQP (Monk v. Canada (Attorney General), 2010 FC 48).
[29] The Tribunal finds that the Appellant did not have a severe disability that made him incapable regularly of pursuing any substantial occupation condition on or before December 31, 2013. Since he did not have a severe disability there is no need to find that he had a prolonged disability.
[30] The basis for the Tribunal’s finding is that the Appellant continued to work and by his own admission earned a significant income in 2014 that was not reflected in his ROE. He confirmed that the cause of his medical problems emanated from a fall that took place in 2014 after his MQP date. This is also reflected in the medical reports provided by Dr. Nanninga- Penner and Dr. Comeau. Dr. Nanninga-Penner in a report to Service Canada stated that the Appellant had mild intermittent back pain since 2002 but the Appellant had experienced a significant worsening of this pain since December 2014.
[31] Dr. Ray Comeau of the Central Alberta Pain and Rehabilitation Institute authored a report to Dr. Nanninga-Penner on June 29, 2016. Dr. Comeau stated that the Appellant’s problems dated back to December 16, 2014 when he fell on ice outside a hospital. Dr. Comeau’s report did not refer to any severe medical issues on the part of the Appellant prior to December 31, 2013.
[32] The Appellant did not provide any medical evidence that showed that he was incapable regularly of pursuing any substantially gainful occupation on or before December 31, 2013.
[33] After reviewing the medical, documentary and oral evidence, the Tribunal finds that the Appellant did not have a severe and prolonged disability on or before December 31, 2013.
Conclusion
[34] The appeal is dismissed.