Canada Pension Plan (CPP) disability

Reasons and decision

Persons in attendance at the hearing

The Appellant, T. C.

The Appellant’s representative, Judith Bayliss

Introduction

[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on February 23, 2015. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).

Preliminary issues

[2] An adjournment was granted at the request of the Member due to a death in the family of the Member. The hearing was rescheduled from March 30, 2017 to May 11, 2017.

[3] This appeal was heard by the Tribunal on May 11, 2017 by teleconference for the following reasons:

1. The Appellant will be the only party attending the hearing.
2. The issues under appeal are not complex.
3. There are gaps in the information in the file and/or a need for clarification.
4. Credibility is not a prevailing issue.
5. 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.

[4] The Tribunal decided that the Appellant was not disabled as defined in the CPP on or before the MQP date of March 31, 2014. The reasons for this decision follow.

The law

[5] 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. a) be under 65 years of age;
2. b) not be in receipt of the CPP retirement pension;
3. c) be disabled; and
4. d) have made valid contributions to the CPP for not less than the minimum qualifying period (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.

Issue

[7] The calculation of the Minimum Qualifying Period (MQP) is important because a person must establish a severe and prolonged disability on or before the end of the MQP.

[8] The Tribunal finds that the MQP date is March 31, 2014. The reason for this date as the MQP is because the Appellant has been receiving a CPP retirement pension since April 2014. The CPP states that an individual can request a withdrawal of a CPP retirement pension in favour of a CPP disability pension if the individual became disabled before they began receiving the CPP retirement pension. In this case, the Appellant began receiving a CPP retirement pension on April 1, 2014 and therefore, she would need to be found to be disabled on or before March 31, 2014 in order to cancel her CPP retirement pension in favour of a CPP disability pension.

[9] Therefore, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before March 31, 2014.

Evidence

[10] The Appellant was 60 years old at the time of her MQP and in the Questionnaire included with her CPP disability application dated February 23, 2015, she indicated that she had completed grade 12 as well as a two year clerk typist course. She noted that she last worked as an office administrator on April 17, 2015 and that she had stopped working because she was too sick too often to work and had to take too much time off due to illness. As a result of COPD, she was prevented from working because of breathing problems and exhaustion. (GD 2-87 – GD 2- 94)

[11] A Contribution of Earnings statement shows that the Appellant had earnings in 32 of 33 years from 1980 to 2014. (GD 2-35 – GD 2-36)

Chronic obstructive pulmonary disease (COPD)

[12] In a report dated April 30, 2013, Dr. Ayo Harris-Eze, respirologist, stated that the Appellant had been doing quite well and had stable exertional dyspnea with perhaps a dyspnea scale of 1-2. He noted there was only a minimal cough and no exacerbations. It was his opinion that the Appellant had mild chronic obstructive pulmonary disease. (GD 1-18)

[13] In a medical report dated March 30, 2015, Dr. Barbara Flanagan, family physician, stated that the Appellant was diagnosed with COPD in 2011. She stated that the Appellant responded to her inhalers but that she needed prednisone with acute exacerbations which has happened two times in 2014. Dr. Flanagan noted that the Appellant had been getting progressively worse and missed more time from work in the past 6 months due to exacerbations. It was recommended that the Appellant stop working, but she stayed longer due to financial constraints. (GD 2-69 - GD 2- 72).

[14] As a result of a Pulmonary Function Test and Six Minute Walk conducted in August 2015, Dr. Aydodeji Harris-Eze concluded that the Appellant had moderate obstructive ventilator impairment with some degree of gas exchange abnormality, although she had a fairly normal six minute walk test distance. He noted that when compared to the study of April 2013, there was significant worsening in FEV1. (GD 1-9)

[15] In a medical note dated January 26, 2016, Dr. Keith Bagole stated that he had been the Appellant’s family physician for the past 6 months. He noted that the Appellant had moderately advanced COPD, requiring triple puffer therapy and suffered repeated exacerbations of her lung disease requiring antibiotic and steroid therapy. It was Dr. Bagole’s opinion that the severity of the Appellant’s disease and the frequency of her exacerbations limited her ability to work. (GD 3-1)

[16] In a subsequent medical note dated October 25, 2016, Dr. Bagole stated that treatment for the Appellant’s COPD was to continue her puffers, which were at maximum medical therapy intensity (Advair, and regular Combivent), ensure she is immunized for pneumovax and flu shots, and treat exacerbations aggressively with steroids and antibiotics as needed. He noted that the Appellant continued to abstain from smoking. Dr. Bagole stated that the Appellant’s functional capacity was not expected to improve. (GD 4-2)

Lateral epicondylitis – Left elbow

[17] In a report dated April 15, 2015, Dr. Allen Profitt, orthopaedic surgeon, stated that the Appellant worked with the provincial government and did a lot of data entry. He noted that he saw the Appellant in November 2014 for a lateral epicondylitis of the left elbow which had responded quite well to a local injection. He noted that in January 2015, the Appellant had a fall at work which re-aggravated her symptoms. Dr. Profitt was of the opinion that since the Appellant respondent quite well to an injection previously, arrangements would be made for another injection. (GD 2-51)

Laryngopharyngeal reflux

[18] In a report dated June 23, 2015, Dr. Michael Fong, ENT, stated that the Appellant was known to have laryngopharyngeal reflux and was taking Tecta as proton pump inhibitor therapy which seemed to be working well. The Appellant was also prescribed Dexilant in April 2015 which was working well but produced diarrhea. Dr. Fong stated that there were subtle findings suggestive of acid reflux and symptoms associated. He discussed lifestyle modifications and suggested that she try the Dexilant again as she found it effective. (GD 2-47 – GD 2-48)

Work efforts

[19] The Appellant applied for a CPP Retirement Pension on February 5, 2014, one month prior to her 60th birthday. The start date for her pension was April 1, 2014. (GD 2-10 – GD 2-15)

[20] In a letter dated July 13, 2015, Rebecca Murphy, program coordinator at Kings county, stated that the Appellant had worked as an Audit & Administrative Officer since 2011. This work involved financial detail and tight timelines. The increased stress was not conducive to the Appellant’s pre-existing health related issues. In 2013 adjustments were made to her duties and responsibilities coupled with other changes within the department. As a result, the Appellant began working within operations, assisting with administrative and compliance duties related to program delivery. It was noted that continued efforts were made over the past year to adjust the Appellant’s work responsibilities and work hours in order to accommodate her health related issues, however her health continued to decline and in consultation with her physician, the Appellant went on sick leave. (GD 2-60)

Testimony at the hearing

[21] The Appellant advised the Tribunal that when she had applied for the CPP retirement pension, she had no intention of stopping work. She wanted to keep pushing and working. However, by December 2014, her condition had deteriorated to the point that she applied for a CPP disability benefit.

[22] She explained that it got harder and harder to work in 2015 and in April 2015, she went on sick leave EI sick leave and did not return to work after that time.

[23] The Appellant stated that she would only get 3-4 hours of sleep because of a gagging issue in her throat. As well the 2014/2015 winter was very bad and cleaning her car off, the roads and the weather conditions were really bad and affected her COPD. Also the stress of working was affecting her and her voice was really causing her issues and her chest was sore. She stated that it was very hard for her accept that she could not work. The Appellant stated that she cannot walk a fast pace or down the stairs because of her condition. The Appellant explained that in the summer she has difficulty breathing because of the humidity and in winter is the cold hinders her breathing. She stated that she no longer has the stamina to work and her condition continues to deteriorate where she is tired.

[24] She explained that she was being accommodated at work in regards to her hours. She testified that at the time she applied for a CPP retirement pension, she was working full hours, but after that, she would work less hours on occasion. She explained that she sometimes left after 6 hours of work. She stated that she worked while she was there.

Submissions

[25] The Appellant submitted that she qualifies for a disability pension because:

1. she has had COPD since 2011 and her health has been getting worse over the past years;
2. she has a strong work ethic and worked longer then she should have because of her physical ability; and
3. she had to keep on working because of financial reasons which is why she kept working further longer than she should have.

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

1. while the Appellant may not be able to work now due to her medical condition, the medical evidence does not show any serious pathology or impairment, which prevented her from doing suitable lighter work prior to the month she received her early retirement pension; and
2. the Appellant had valid work activity after her MOP which does not support she was disabled before or on March 31, 2014.

Analysis

[27] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before March 31, 2014.

Severe

[28] The Tribunal finds that when considering the severe criterion in a real world context as determined by the Federal Court of Appeal in Villani v. Canada (A.G.), 2001 FCA 248, the Appellant’s age, level of education, language proficiency, and past work and life experience would not preclude her from any employment and she would be able to re-train or learn new skills. The Appellant was 60 years old at the time of her MQP, has a grade 12 education, as well as a long work history.

[29] Not everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension. Claimants still must be able to demonstrate that they suffer from a serious and prolonged disability that renders them incapable regularly of pursuing any substantially gainful occupation. Medical evidence will still be needed as will evidence of employment efforts and possibilities.

[30] The Appellant’s primary claimed disability is COPD. However, the Federal Court of Appeal in Bungay v. Canada (Attorney General), 2011 FCA 47 found that all of the possible impairments are to be considered, not just the biggest impairments or the main impairment. The medical evidence also supports that the Appellant has diagnoses of Lateral Epicondylitis – Left Elbow and Laryngopharyngeal Reflux. A claimant’s condition is to be assessed in its totality. The Tribunal also looked for guidance to Petrozza v. MSD (October 27, 2004), CP 12106 (PAB) which found that it is not the diagnosis of a condition that automatically precludes one from work. It is the effect of the condition on the person that must be considered. Therefore, although the Appellant had several diagnosed conditions, the Tribunal looked to the effect of these conditions on her function ability and whether the conditions individually or collectively met the definition of “severe” as defined in the CPP legislation.

[31] The Tribunal finds that the Appellant’s conditions of Lateral Epicondylitis – Left Elbow and Laryngopharyngeal Reflux would not be considered severe, as defined in the CPP legislation. The medical evidence of Dr. Profitt was that in November 2014, which is after the Appellant’s MQP and the date by which she must be found to be disabled, that the Appellant had responded quite well to a local injection in her left elbow. Even after a subsequent injury which re-aggravated the Appellant’s symptoms in January 2015, Dr. Profitt was still of the opinion that due to the success of the initial injection, an injection should be performed again. With regard to the Appellant’s diagnosis of Laryngopharyngeal Reflux, the medical evidence of Dr. Fong in June 2015, more than one year past the Appellant’s MQP date, was that the Appellant was using Tecta as proton pump inhibitor therapy and this seemed to be working quite well. There is no evidence to support that the individual or cumulative effects of these conditions would preclude the Appellant from any substantially gainful employment.

[32] The Tribunal finds that the medical evidence supports that the Appellant has had a diagnosis of COPD since at least 2011. However, the Tribunal finds that the Appellant’s COPD condition does not meet the definition of “severe” by March 31, 2014. The medical evidence of Dr. Ayo Harris-Eze in April 2013 was that the Appellant had been doing quite well, had stable exertional dyspnea, only minimal cough and her COPD condition was mild. This would support that the Appellant’s COPD condition was not severe by April 2013. The Tribunal then looked to the evidence to see if the Appellant’s COPD condition worsened in the next year and if it would meet the definition of “severe” by March 31, 2014. To that end, the Tribunal considered the medical report of the Appellant’s family physician in March 2015. The family physician’s evidence is that the Appellant was responding to her inhalers but had two incidents in 2014 which required the use of prednisone. She also reported that the Appellant’s COPD condition had been getting progressively worse and missed more time from work in the previous 6 months due to exacerbations. The evidence of the family physician would not support that the Appellant’s COPD condition met the definition of “severe” by April 2014. The Tribunal finds that the family doctor’s evidence corroborates the Appellant’s testimony that her condition worsened in the winter of 2014/2015, causing her to miss work and triggering the application for a CPP disability benefit in December 2014 and that she had no intention of stopping work in April 2014, when she applied for her CPP retirement pension.

[33] The Tribunal considered the Appellant’s attempt at employment and finds that while she may not be able to work today, the evidence does not support that at the time of her MQP, March 31, 2014, she was incapable regularly of pursuing any substantially gainful employment. The Federal Court of Appeal in Klabouch v. Canada (MSD), [2008] FCA 33 found that it is the Appellant's capacity to work and not the diagnosis of a disease that determines the severity of the disability under the CPP. An Applicant must adduce before the Tribunal not only the medical evidence in support of the claim that their disability is “severe” and “prolonged”, but also evidence of efforts to obtain work and to manage their medical condition. The evidence of the Appellant’s employer in July 2015 was that over the previous year efforts were made to adjust the Appellant’s work responsibilities and hours worked. Despite these attempts, the Appellant’s health continued to decline and the Appellant went on sick leave. This is corroborated by the Appellant’s testimony that she went on sick leave in April 2015 and did not return to work after that time. The further testimony of the Appellant was that at the time she applied for a CPP retirement pension in February 2014, she had no intention of stopping work and she was in fact working full hours. Unfortunately, although the evidence supports that the Appellant’s condition worsened in the later part of 2014 and 2015, the Tribunal is bound by the legislation and finds that at the time of the Appellant’s MQP, March 31, 2014, she was working full time hours and had no intention of stopping work.

[34] The Appellant’s testimony, conveyed forthrightness, and her testimony was credible. The Tribunal acknowledges that the Appellant has a long work history and a strong work ethic. The Appellant has argued that she continued to work only for financial reasons and that it is difficult to find a good job in her province. However, the Federal Court of Appeal in Canada (MHRD) v. Rice, 2002 FCA 47 found that socio-economic factors such as labour market conditions are not relevant in a determination of whether a person is disabled within the meaning of the CPP.

[35] While the Tribunal is sympathetic to the Appellant’s situation, the Tribunal is created by legislation and, as such, it has only the powers granted to it by its governing statute. The Tribunal is required to interpret and apply the provisions as they are set out in the CPP. The Tribunal cannot use the principles of equity or consider extenuating circumstances to allow the Appellant to cancel the retirement pension in favour of a disability pension.

[36] Having considered the totality of the evidence and the cumulative effect of the Appellant’s medical conditions, the Tribunal is not satisfied on the balance of probabilities that the Appellant suffers from a severe disability in accordance with the CPP criteria.

Prolonged

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

Conclusion

[38] The appeal is dismissed.