Canada Pension Plan (CPP) disability

Reasons and decision

In attendance (via videoconference)

Overview

[1] This is an appeal of the General Division’s decision dated October 9, 2015. The General Division determined that the Appellant was not eligible for a disability pension under the Canada Pension Plan, as it found that her disability had not been “severe” by the end of her minimum qualifying period. The Appeal Division granted leave to appeal on January 22, 2016, on the ground that the General Division may have erred in law or may have based its decision on erroneous findings of fact that it had made in a perverse or capricious manner or without regard for the material before it.

[2] The hearing of this appeal was by videoconference, given the complexities of the matter and the availability of videoconferencing facilities.

Grounds of appeal

[3] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal. It reads:

58. (1) The only grounds of appeal are that

1. (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Issues

[4] The Appeal Division granted leave to appeal on the basis of what it identified were four succinct issues:

1. Did the General Division err in law when it referred to the end of the minimum qualifying period as being both December 31, 2010 (or the end of June 2011 with proration), and December 31, 2011?
2. Did the General Division err in law and also base its decision on an erroneous finding of fact that it made without regard for the material before it, when it concluded that there was no evidence that her efforts at obtaining and maintaining employment had been unsuccessful because of her health?
3. Did the General Division base its decision on an erroneous finding of fact that it had made without regard for the material before it, on the issue of whether her inability to find a job after an accident was because of market conditions, rather than her disability?
4. Did the General Division base its decision on an erroneous finding of fact that it had made without regard for the material before it, that the Appellant’s mental health would continue to improve with therapy, that she would be able to work after completing retraining and that she would have continued working at her pre-accident employment if she had not been terminated?

[5] There is, at the very least, considerable overlap between issues b. and c., so I will address them together.

[6] Finally, if the answer to any of these issues is “yes,” what is the appropriate disposition of this matter?

a. Minimum qualifying period

[7] In her leave to appeal decision, the Appeal Division member noticed that the General Division had referred to both December 31, 2010 and December 31, 2011 as the end of the Appellant’s minimum qualifying period.

[8] At paragraph 6, the General Division identified December 31, 2011 as the end of the Appellant’s minimum qualifying period. At paragraph 61, the General Division noted that the Appellant was 34 years of age at “her MQP [minimum qualifying period] date of December 31, 2011.” Yet, at paragraphs 43, 44 and 62, the General Division identified December 31, 2010 as the end of the minimum qualifying period.

[9] At subparagraph 43(i), the General Division summarized the Respondent’s submissions, which were that the evidence did not support a determination that the Appellant had been disabled “on or prior to her MQP of December 2010 and continuously thereafter or at the possible prorated date of June 2011.” The member then proceeded with her analysis, indicating at paragraph 44 that the Appellant was required to prove that she had a severe and prolonged disability on or before December 2010 or at the possible prorated date of June 2011.

[10] The parties agree that an appellant has only one minimum qualifying period. The Respondent has consistently maintained—dating back to as early as its reconsideration decision in January 2013 (GD2-6 to 8)—that the end of the Appellant’s minimum qualifying period is December 31, 2010, with a possible prorated date of June 2011. In the leave to appeal materials, the Appellant maintained that the end of the minimum qualifying period is December 31, 2011 (AD1-1). The date is critical, as an appellant must establish that he or she has become disabled by the end of the minimum qualifying period, to qualify for a Canada Pension Plan disability pension.

[11] A review of the earnings history indicates that the Appellant had valid contributions to the Canada Pension Plan between 1995 and 2008 (GD2-27). She had to have made contributions in four out of the last six years in her contributory period (which in this case ended in September 2010—15 months prior to the date of her application). Accordingly, her minimum qualifying period ended on December 31, 2010. However, she may be able to rely on proration, under section 19 of the Canada Pension Plan, given that she had some earnings in 2011. Under proration, the Appellant would have had to establish that she had become disabled in 2011—by the end of June.

[12] The Respondent submits that, although the General Division may have incorrectly stated the Appellant’s minimum qualifying period and may have thereby incorrectly indicated that the issue before it was whether the Appellant had been severely disabled by December 31, 2011, rather than by December 31, 2010, ultimately, it did not err in law on this issue. The Respondent argues that it is apparent that the incorrect date represents a typographical error and that the General Division member was aware of the correct minimum qualifying period, given that it is set out at paragraphs 43, 44 and 62. I might have been prepared to accept that there was a typographical error at paragraph 6, but for the fact that the General Division replicated the error at paragraph 61. In other words, there are two separate places where the General Division set out the wrong date.

[13] These are clear errors, as an appellant cannot have two distinct dates for the end of his or her minimum qualifying period. Of greater concern, however, is whether the errors at paragraphs 6 and 61 are of any consequence to the outcome of these proceedings.

[14] Both parties claim that these errors are inconsequential. In the Appellant’s case, she claims that the errors are inconsequential because the Appellant became disabled by the end of December 2010 and that she has been continuously since then. The Respondent claims that the errors are inconsequential because the Appellant has not established that she was disabled at all, whether before December 2010, June 2011 or December 2011, or that she has been continuously disabled since then.

[15] The Appellant was required to have become disabled by the end of her minimum qualifying period of December 31, 2010, or by the prorated date of June 30, 2011. If she had become disabled after June 30, 2011, she would not have met the requirements for a disability pension under the Canada Pension Plan. Therefore, if the General Division had found that the Appellant had become disabled sometime between June 30 and December 31, 2011, this would have resulted in a clear error that would have warranted overturning the decision.

[16] In the particular facts of this case, I agree with the parties that the General Division’s error in identifying two different end dates for the minimum qualifying period is of no consequence, given the outcome of the proceedings. Irrespective of whether the General Division used the date of December 31, 2010, June 30, 2011 or December 31, 2011, ultimately, the General Division determined that the Appellant was not disabled even by the latest date of December 31, 2011, and that she has not been continuously disabled since then.

b. Return to work efforts & Labour market conditions

[17] The Appellant alleges that the General Division based its decision on erroneous errors of fact that it made at paragraphs 56 and 57, regarding her efforts at obtaining and maintaining work.

[18] At paragraph 56, the General Division wrote that the Appellant had been terminated from her employment as a personal support worker in November 2010 because she was unable to return to her pre-accident work capacity and was functioning at a sedentary physical demands level. The member also wrote that, “[i]t is reasonable to conclude that had she not been terminated, she would have continued working.” Put another way, the General Division concluded that, notwithstanding the Appellant’s physical condition and limitations, she would have continued working as a personal support worker, had work been available to her. The General Division came to this conclusion ostensibly because the Appellant had been working at Sunbeam Residential Development Centre, despite her physical limitations, until her employer terminated her in November 2010.

[19] It is implicit that the member was fully cognizant of the fact that the Appellant was unable to return to her employment as a personal support worker after she had been terminated, given its physical demands and because of the Appellant’s medical condition. At paragraph 52, the member acknowledged, for instance, that the Appellant’s restrictions limit her ability to work in physically demanding jobs. At paragraph 55, the member noted that the authors of a February 2012 discharge report observed that the Appellant had “significant permanent functional limitations.” The member also indicated in the same paragraph that there was no dispute that the Appellant still required ongoing and future medical rehabilitation. In this regard, it was unnecessary for the member to speculate whether the Appellant might have continued working in her capacity as a personal support worker, had the employer not terminated her. Despite the member’s gratuitously overbroad statement, I am not satisfied that the member necessarily erred in this regard. In the overall context of her decision, it is clear that the member accepted that the Appellant experienced limitations. Given that the member had accepted that the Appellant had physical limitations, one can also infer that the member’s conclusion that the Appellant would have continued working as a personal support worker had to have been necessarily predicated on the assumption that the Appellant would have continued working only if the employer had either continued to tolerate the Appellant’s limitations or if it had provided workplace accommodations.

[20] In her leave to appeal decision, the Appeal Division member granted leave to appeal, in part, on the basis that the General Division may not have set out an evidentiary basis for finding that the Appellant’s inability to obtain a job was a result of market conditions rather than her disability.

[21] At paragraph 57, the General Division member wrote:

[57] The Appellant reported that in 2011 she attempted to find suitable work and applied to more than 70 to 80 positions before being offered a part-time teller position at Bank of Montreal. She reported having only received a handful of interviews. The Tribunal is aware 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 (Canada (MHRD) v. Rice, 2002 FCA 47). Evidence of employment efforts and possibilities refers to the capacity of a claimant to be employed in any substantially gainful occupation and not to whether, in the context of the labour market, it is possible to get a job.

[22] The Appellant argues that the General Division erred in law and also based its decision on an erroneous finding of fact that it had made without regard for the material before it when it suggested that there was no evidence that the Appellant’s efforts at obtaining and maintaining employment had been unsuccessful because of her health.

[23] The Appellant asserts that the evidence before the General Division was that her functional limitations—rather than any labour market conditions—led to her downfall and that her optimism at being able to return to the workforce was not an accurate representation of her capacity regularly of pursuing any substantially gainful occupation. The Appellant notes that she attempted returning to work as a part-time bank teller for two months in 2011. She argues that the evidence on record from her employer and in her own testimony was that she was ultimately unsuccessful in this position because of severe pain and physical limitations. She also notes that she required several medical leave absences and that her employer had reported poor attendance that was attributed to her medical issues. The Appellant vigorously opposes any suggestion or findings that there was no supporting evidence that her efforts at obtaining and maintaining employment had been unsuccessful by reason of her health evidence, given her testimony and the employer’s evidence.

[24] The Appellant claims that there was evidence that she had been unsuccessful at obtaining and maintaining any employment because of her functional limitations. The Appellant notes that the General Division even alluded to some of her efforts at obtaining employment. At paragraph 57, the member noted that the Appellant had “applied to more than 70 to 80 positions being offered a part-time teller position at Bank of Montreal,” where the Appellant worked between April 4, 2011 and June 10, 2011.

[25] The General Division set out the evidence relating to this part-time employment. At paragraph 41, the member wrote:

On June 28, 2012 the Appellant’s former employers (Bank of Montreal) reported that the Appellant had been employed by them as a customer services representative on a part-time basis from April 4, 2011 and that she resigned from work on June 10, 2011. They reported that during her period of employment, her attendance at work was poor due to her medical issues resulting in sick leave absences. They indicated that her quality of work was satisfactory and that they had accommodated her by giving her shortened work hours as recommended directed by her doctor. They reported that she had the ability to work but that she had resigned because she found her pain levels were too high. BMO advised that they had been willing to accommodate her and had offered her various options to allow her to continue working (including short term disability).

[26] From the perspective of her employment as a part-time bank teller, the General Division does not appear to have analyzed whether the Appellant met the requirements under Inclima v. Canada (Attorney General), 2003 FCA 117, that she establish that her efforts at obtaining and maintaining employment were unsuccessful because of her health. At paragraph 51, the General Division noted that the Bank of Montreal stated that they had been prepared to accommodate the Appellant and that it had offered numerous options. The member also noted that the Appellant had testified that she had stopped working, in part, because the employer was increasing her work hours and job responsibilities. The General Division did not examine whether the Appellant had left this employment in June 2011 because of her health.

[27] However, it is clear that the General Division determined that the “Inclima analysis” did not end after the Appellant’s part-time employment as a bank teller and that her obligations to obtain and maintain employment continued after June 2011. The General Division conducted an “Inclima analysis” after June 2011 because it had determined that the Appellant continued to exhibit some residual work capacity.

[28] The General Division conducted its “Inclima analysis” at paragraphs 59 and 61, examining whether the Appellant tried to obtain and maintain employment after June 2011 and, if she had, whether her efforts failed because of her health. The General Division noted that the Appellant had expected to complete a post-graduate diploma program in forensic practice in December 2015, after which she intended to look for work. The member determined that it was speculative that the Appellant would be unable to work after completing her courses. The member found that if the Appellant was able to study and retrain “having faithfully undertaken the course for many years (since 2012) [albeit at one course per term], the Appellant demonstrated ability to perform activities at a sedentary level.” In other words, it was insufficient that the Appellant had sent out over 70 to 80 applications in past or that she had worked part-time as a bank teller in 2011. The member required that the Appellant continue to show that she had undertaken efforts at obtaining and maintaining employment of a sedentary nature since then, having had successfully taken courses since 2012.

[29] Given the General Division’s findings, the Inclima requirement (to show that efforts at obtaining and maintaining employment had failed because of her health) did not end in June 2011, when she last worked. As the General Division found that the Appellant had exhibited capacity since 2012, it was incumbent on the Appellant to establish that any efforts at obtaining and maintaining employment had failed because of her health condition, despite the fact that she felt that she was unable to work by then. The Appellant has not referred me to any evidence that she had undertaken any efforts since 2012 to obtain and maintain employment and that these efforts had failed because of her health, and I do not see that the Appellant adduced any evidence in this regard. Hence, it was open for the General Division to conclude that there was no evidence that the Appellant’s efforts to obtain and maintain employment were unsuccessful because of her health.

c. Therapy and retraining

[30] The Appellant submits that the General Division based its decision on erroneous findings of fact that it had made without regard for the material before it, when it found that (1) the Appellant’s mental health would continue to improve with further therapy, (2) she would be able to work after completing retraining and (3) she would have continued to work at her pre-accident employment if she had not been terminated. The Appellant argues that these were speculative and without any evidentiary foundation. I have already addressed the third of these alleged erroneous findings of fact above and will focus on the first two issues in this section.

[31] At paragraph 54, the General Division found that it was reasonable to expect further improvement in the Appellant’s condition “as she continued to have ongoing psychological therapy.” The Appellant argues that there was no evidence upon which the General Division could make this finding.

[32] The General Division set out the evidence regarding the Appellant’s treatment for her mental health issues. The Appellant underwent a psychological assessment with Dr. Cole in October 2011. From December 2011 to February 2012, the Appellant also participated in an interdisciplinary pain management program with Altum Health Pain Management Program, for the purposes of developing pain coping and activity management skills. The General Division noted that, upon discharge from this program, the Appellant was “noted to have improvements with her mood, sleeping, memory and concentration, stress management and socializing.” The General Division noted the Appellant’s questionnaire, which indicated she was continuing with psychological therapy. Her family physician also expressed hope that the Appellant’s depression and anxiety would improve over time. Given that the Appellant had already exhibited some improvement with therapy, it was plausible for the General Division to conclude that the Appellant could see continued improvement with further therapy. After all, it is doubtful that a health practitioner would have recommended treatment and would have continued treatment if there had been no prospect and little likelihood for improvement, or that an appellant would continue treatments if he or she thought that they were futile.

[33] The Appellant submits that the General Division erred in finding that she would be able to work after retraining. However, the General Division did not explicitly make such a finding. The General Division determined that the Appellant exhibited some capacity to work, and it required that she should endeavour to obtain and maintain employment, or otherwise show that efforts at obtaining and maintaining employment had been unsuccessful because of her health. At the time of the hearing before the General Division, the Appellant had yet to complete her vocational retraining and speculated that she might not be able to work after she completed her course. The General Division wrote that, “[c]onjecture that she may not be able to work after she completes her course is not acceptable.”

[34] Apart from noting that she had attended a course “for many years (since 2012)” and that she therefore demonstrated ability to perform activities at a sedentary level, the General Division also determined that she exhibited some residual capacity on the basis of the expert opinions. For instance, the General Division found that the medical evidence indicated that the Appellant was functionally capable of working at a sedentary level, albeit with some permanent restrictions and limitations with prolonged walking, sitting or standing, among other things.

[35] The General Division also noted that an orthopaedic surgeon was of the opinion that it was unlikely that the Appellant would return to her career managing disabled individuals and that he had recommended vocational retraining. The General Division also noted that, in June and November 2011, the Appellant underwent a vocational assessment, in which she reported widespread pain. The General Division noted too that the occupational therapist advised against jobs that involved prolonged sitting and that he recommended that she consider jobs that enabled her to change positions frequently and that she alternate between sitting, standing and walking. The General Division further noted that the occupational therapist recommended retraining in a forensic practice program. If the orthopaedic surgeon and vocational consultant had determined that the Appellant lacked any residual capacity, it is doubtful that they would have recommended any vocational retraining. For these reasons, it was plausible for the General Division to conclude that the Appellant exhibited some residual capacity regularly of pursuing any substantially gainful occupation.

[36] I am unconvinced that the General Division erred in coming to these findings, given the evidence before it.

Conclusion

[37] Given the considerations above, the appeal is dismissed.