Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant, T. P., had been working as a supervisor and light-duty cleaner until April 2008, when he stopped working because of increasing pain in his neck, shoulder, arm and hand. He had previously injured his back, left arm and wrist in April 2004, from which he had never fully recovered. He has not returned to the workforce since April 2008. In February 2010, he underwent surgery for his back and neck but claims that he has been left with limited strength in his left arm and that he continues to have pain with use. He also claims that he is unable to sit or stand for prolonged periods. In 2014, the Appellant’s provincial workers’ compensation appeals tribunal awarded him a full earnings-replacement benefit retroactive to August 2013, after a transferable skills analysis was unable to identify any suitable occupations for him.

[3] In April 2014, the Appellant applied for a Canada Pension Plan disability pension, but the Respondent, the Minister of Employment and Social Development, denied his application, initially and upon reconsideration. He appealed the Respondent’s reconsideration decision to the General Division, but it also determined that he was ineligible for a Canada Pension Plan disability pension, since it found that his disability was not “severe” by the end of his minimum qualifying period on December 31, 2005, and that it had not become “severe” within the prorated period from January 1, 2006 to October 31, 2006. The end of the minimum qualifying period is the date by which a claimant is required to be disabled to qualify for a Canada Pension Plan disability pension. Proration may be available to a claimant, provided that the triggering event, i.e. the onset of a severe disability, occurs within the proration period.

[4] The Appellant sought leave to appeal the General Division’s decision on the basis that it had overlooked some of the evidence. Although the Appellant failed to identify any evidence that might have been overlooked, I granted leave to appeal because I found that there was an arguable case that the General Division had failed to consider whether the Appellant became severely disabled sometime within the proration period, between January 1, 2006 and October 31, 2006; that it had overlooked some of the evidence; and that it had failed to consider whether the Appellant’s employment between 2006 and 2008 constituted a substantially gainful occupation.

[5] I must determine whether the General Division erred and, if so, whether any errors it might have committed are fatal to its decision.

[6] The appeal is dismissed. Despite some shortcomings in the General Division’s analysis, its overall findings are consistent with the preponderance of evidence before it. For one, the medical evidence does not establish that the Appellant became severely disabled either before the end of his minimum qualifying period or within the proration period. And, the Appellant worked on a full-time basis after the end of his minimum qualifying period and after the proration period.

Issues

[7] The issues before me are as follows:

1. Did the General Division fail to consider whether the Appellant became severely disabled sometime within the proration period between January 1, 2006 and October 31, 2006?
2. Did the General Division overlook any critical evidence and, in so doing, base its decision on an erroneous finding of fact that it made without regard for the material before it?
3. Did the General Division fail to consider whether the Appellant’s employment between 2006 and 2008 constituted a substantially gainful occupation?

Analysis

[8] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to the following:

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.

[9] The Appellant submits that the General Division erred under subsection 58(1)(c) of the DESDA.

(a) Did the General Division fail to consider whether the Appellant became severely disabled sometime within the proration period between January 1, 2006 and October 31, 2006?

[10] Proration would have been available to the Appellant, if he could have established the onset of a severe disability within the proration period. Here, having found that the Appellant did not have a severe disability by the end of his minimum qualifying period, the General Division was required to determine whether a severe disability arose within the proration period between January 1, 2006 and October 31, 2006. In this regard, seemingly it failed to do so when its analysis was ostensibly restricted to whether the Appellant had a severe disability by the end of his minimum qualifying period.

[11] There was extensive medical documentation before the General Division, much of it originating with or relating to the Appellant’s claim with the provincial workers’ compensation board. The General Division reviewed the medical evidence, from a work conditioning report dated July 14, 2004, to a functional capacity evaluation dated January 27, 2014. The General Division primarily focussed on medical records that had been prepared in late 2004 and 2005, along with a functional capacity evaluation dated July 3, 2013, but it did not review any of the 2006 or 2007 records. The Appellant suggests that this constitutes an error.

[12] As I indicated in my leave to appeal decision, a review of the 2006 records (and, for that matter, records from any subsequent years) may have been necessary because these records, in the absence of any other considerations, could have established whether a severe disability had arisen sometime within the prorated period between January 1, 2006 and October 31, 2006. Ideally, the General Division would have clearly explained why it did not assess the medical evidence to determine whether the Appellant became severely disabled within this period.

[13] As I also noted in my leave to appeal decision, there was only one medical record before the General Division for 2006 or 2007, a medical impairment assessment that was conducted in late November 2006.^{Footnote 1} The report, prepared within or shortly after the proration period, concluded that the Appellant had a 2% whole-person permanent medical impairment.

[14] Dr. Mark Sorhaindo, the medical advisor who conducted the permanent medical impairment assessment, noted that the Appellant had returned to work on a full-time basis in January 2006, as a day porter with light-duty cleaning activities, though he remained unemployed at the time of the assessment. The Appellant complained of decreased strength in his left hand, occasional left arm pain, and a pinching sensation in his right wrist and distal forearm areas that increased to pain with activity. The Appellant had attained maximal medical recovery. He reported having difficulty with tasks requiring the use of excessive grip, such as washing dishes or lifting heavy items. The medical advisor found that the Appellant was left with range of motion deficits about the wrists, but no significant motor or sensory deficits. The pain was consistent with tendonitis.

[15] The assessment did not address whether the Appellant might have left work after 2006 because of his injury but, more importantly, the report does not indicate that the injury began sometime between January 1, 2006 and October 31, 2006. Indeed, the Appellant’s complaints trace back to the initial injury sustained in April 2004. From this, I find that the permanent medical impairment assessment conducted in late November 2006 failed to establish that the Appellant’s disability arose sometime between January 1, 2006 and October 31, 2006.

[16] In any event, it may be that the General Division found it unnecessary to review any of the 2006 or 2007 records, despite the fact that proration might have been available to the Appellant if he could have established the onset of a severe disability within the proration period. The General Division may have determined that it was unnecessary to review these records because it found that the Appellant was working on a full-time basis between January 2006 and April 2008, that his condition had improved following surgery in February 2010, and that a functional capacity evaluation conducted in July 2013 showed that the Appellant was capable of eight hours of medium- to heavy-level work, including work as a light-duty cleaner.

[17] On its face, this analysis is sound. If there was evidence that clearly showed that the Appellant was fully engaged in or was capable regularly of pursuing a substantially gainful occupation after October 31, 2006, then the Appellant would have been unable to establish that he was severely disabled by the end of his minimum qualifying period or that a severe disability arose within his proration period, and that it was long continued and of indefinite duration or likely to result in death.

[18] However, the Appellant argues that the factual underpinnings on which the General Division based its conclusions were faulty. In particular, he asserts that the General Division erred by ignoring the January 27, 2014 functional capacity evaluation^{Footnote 2} and by relying instead on the July 2013 functional capacity evaluation when finding that he could not have been severely disabled by the end of his minimum qualifying period.

[19] The Appellant suggests that the General Division should have disregarded the July 2013 functional capacity evaluation because the functional capacity evaluation dated January 27, 2014, determined that employment as a light-duty cleaner was neither suitable nor available to the Appellant, given his level of impairment and restrictions as to the types of activities that he was capable of performing.

[20] While the physiotherapist who conducted the January 2014 evaluation ruled out the occupation of a light-duty cleaner, he noted in his summary that the Appellant demonstrated physical abilities consistent with medium-level weighted activities. Further, in his review of the Appellant’s work history, the physiotherapist wrote that the Appellant worked as a cleaning supervisor for approximately two years before he was forced to discontinue due to escalating neck and arm pain. The physiotherapist also wrote that the Appellant did short-term training in cleaning in 2012 and that he was operating equipment using mainly his right arm. The Appellant found that mopping exacerbated his neck and arm pain.

[21] In addition to the January 2014 evaluation ruling out light-duty cleaning, there was also a transferable skills analysis, prepared on August 8, 2014.^{Footnote 3} The transferable skills analysis considered the Appellant’s employment history, academic assessment and physical limitations. Taking these factors into account, the assessor was unable to identify any realistic potential employment for the Appellant.

[22] The General Division member should have explained why she preferred the July 2013 functional capacity evaluation to the January 2014 functional capacity evaluation and the August 2014 transferable skills analysis. Without this explanation, the General Division’s analysis (that the Appellant did not become severely disabled by the end of his minimum qualifying period or within the proration period), based as it was on the July 2013 functional capacity evaluation, does not withstand scrutiny.

[23] However, the results of the January 2014 functional capacity evaluation and August 2014 transferable skills analysis—even if they could be found to support a finding that the Appellant is incapable regularly of pursuing a substantially gainful occupation—are irrelevant because they do not address the issue of whether the Appellant had become severely disabled within the proration period or, for that matter, by the end of his minimum qualifying period. Neither report examined the Appellant’s limitations or his capacity in 2005 or 2006.

[24] The General Division also found that the Appellant could not have had a severe disability by the end of his minimum qualifying period because there had been some improvement following his surgery in 2010. However, the fact that there had been some improvement is by no means a measure of a claimant’s capacity. A decision-maker would have to examine the extent of the improvement before being able to conclude that a claimant is not severely disabled because of improvement in their overall condition. After all, a claimant can remain severely disabled, even after improvement.

[25] The General Division also relied on the fact that the Appellant had been engaged in full-time employment when it found that he was not severely disabled. Regrettably, there were few employment-related records. Earnings of approximately $3,500 and $9,000 for 2006 and 2007, respectively, with an hourly salary of $5.85,^{Footnote 4} hinted that the Appellant’s employment may not have been substantially gainful. Yet, several medical records note that the Appellant was working on a full-time basis. This description likely originated with the Appellant’s own self-reporting. However, there was no indication of the hours he worked, whether additional hours were available, whether he required assistance or any accommodations, or whether the Appellant missed any work or had to decline any work opportunities in 2006 or 2007 because of his health condition. Although his earnings of $9,000 for January to April 2008 were significantly higher than in previous years, again, few details were available regarding the nature of this employment for these four months. The absence of any employment records therefore made it more challenging to assess the nature of the Appellant’s employment and to determine whether it could constitute a substantially gainful occupation or possibly even a failed work attempt.

[26] There were shortcomings in the General Division’s analysis and its reliance on the July 2013 functional capacity evaluation, on the fact that the Appellant improved following surgery in 2010, and on the fact that he had allegedly been working full-time from 2006 to 2008, without confirming that this was a substantially gainful occupation. There is no doubt however that the Appellant’s description of his employment from 2006 to 2008 as “full-time”—despite the level of earnings in two of those years—undercut his claim that he had a severe and prolonged disability by the end of December 31, 2005, or that a severe disability arose between January 1 and October 31, 2006.

[27] Given these shortcomings in the General Division’s analysis, it is necessary to examine the medical records, particularly for 2006, and, to a lesser extent, records in following years to determine whether the Appellant became severely disabled within the proration period.

[28] The General Division assessed the 2004 and 2005 medical records, but it did not assess any of the records to determine whether there was an onset of a severe disability sometime between January 1, 2006 and October 31, 2006. In my own review of the hearing record, I was unable to locate any medical evidence to suggest that the onset of a severe disability arose within the proration period between January 1, 2006 and October 31, 2006. The medical evidence uniformly indicates that the Appellant’s ongoing complaints and disability originate with his initial injury in April 2004.

(b) Did the General Division overlook any critical evidence and, in so doing, base its decision on an erroneous finding of fact that it made without regard for the material before it?

[29] The Appellant contends that the General Division overlooked some of the evidence. Although I indicated in my leave to appeal decision that the Appellant had failed to identify that evidence, he did not provide any further submissions to address this issue.

[30] It is well-settled law that a decision-maker need not refer to all of the evidence before it, as they discern and address only the most important factual findings and justifications for them. As the Federal Court of Appeal held in Simpson v. Canada (Attorney General), a tribunal need not refer in its reasons to each and every piece of evidence but is presumed to have considered all the evidence. However, as I set out in my leave to appeal decision, the General Division overlooked the 2006 permanent medical impairment assessment. In the absence of other considerations, the General Division should have examined the report—given that it was prepared so close to the end of the proration period—to determine whether it could support a finding that the Appellant had become severely disabled either by the end of his minimum qualifying period or within the proration period.

[31] The General Division focused on the 2005 medical reports, as well as the 2013 functional capacity evaluation. As I have indicated above, the 2014 functional capacity evaluation and transferable skills analysis came to a different conclusion than the 2013 functional capacity evaluation. Given that the General Division had relied on the 2013 functional capacity evaluation, the General Division should have addressed the conflicting opinions in the 2013 and 2014 reports.

[32] Nevertheless, even if the General Division had analyzed the 2014 reports, the outcome would have remain unchanged because these reports did not address or establish whether the Appellant had become severely disabled by the end of his minimum qualifying period or within the proration period.

[33] Another medical report that the General Division did not address was the November 2006 medical impairment assessment. Arguably, the General Division should have addressed this particular report because it was the only one prepared close to the proration period. There were no other reports or records for 2006 and no reports at all for 2007.

[34] As I indicated above, Dr. Sorhaindo noted in this November 2006 assessment that the Appellant had returned to work in January 2006 on a full-time basis as a day porter with light-duty cleaning activities. The Appellant saw Dr. Sorhaindo for the purposes of determining the extent of any permanent impairment from his left wrist and forearm injury sustained in April 2004. Dr. Sorhaindo found that there was a 2% impairment of the whole person. He did not comment on the Appellant’s capacity or suggest that the Appellant was otherwise incapable regularly of pursuing any substantially gainful occupation at the end of his minimum qualifying period or that there was an onset of a severe disability within the proration period.

[35] The 2008 medical records consist of two diagnostic reports, but they say nothing about the extent of the Appellant’s pain or scope of limitations.^{Footnote 5} The Appellant had an MRI of his cervical spine in January 2009, which showed central disc herniation at the C6-7 level and left paracentral disc herniation at T2-3. None of the diagnostic scans spoke to the issue of the Appellant’s capacity.

[36] I note that there were no narrative medical reports for 2008 or 2009, save for a neurologist’s consultation report dated September 8, 2009, to the family physician.^{Footnote 6} The Appellant saw the neurologist regarding problems involving his left arm pain. The Appellant was no longer working at that time. The limitation with the neurologist’s report is that it does not address the issue of whether the Appellant could have been severely disabled by the end of the minimum qualifying period, nor does it attempt to reconcile how the Appellant could have possibly been severely disabled if he resumed working on a full-time basis from 2006 through to 2008.

[37] By 2008, it is clear that the Appellant began experiencing increased pain involving his neck. The post-2009 medical records—particularly the January 2014 functional capacity evaluation and August 2014 transferable skills analysis—are supportive of the Appellant’s claim, but they indicate that, by then, the Appellant’s overall condition had deteriorated from what it had been before the end of the minimum qualifying period or even within the prorated period. While the Appellant had some early neck symptoms, they became progressively more severe over time—to the point that he had to leave work in 2008—culminating in anterior cervical discectomy and fusion in February 2010, from which the Appellant did not obtain any significant relief. The post-2009 records began dealing with the Appellant’s neck issues, something that did not prominently feature in the Appellant’s complaints before 2008.

[38] Because the Appellant’s presentation after 2008 was comparatively worse than it had been from 2004 to 2006, the post-2009 records were unreliable indicators of the severity of the Appellant’s disability before the end of the minimum qualifying period. The post-2009 records did not assist the Appellant in establishing the onset of a severe disability within the proration period because his complaints originated with the April 2004 injury.

[39] I find that, although the General Division overlooked some of the evidence, ultimately it “would not have made good the pervasive evidential weaknesses”^{Footnote 7} in the Appellant’s case. If the Appellant was going to rely on any of the reports to advance his claim, they should have reconciled how the Appellant could have possibly been severely disabled by the end of the minimum qualifying period, or how there could have been the onset of a severe disability within the proration period, with the fact that he reportedly worked on a full-time basis between 2006 and 2008, well after the minimum qualifying period or the proration period. None of the reports addressed this critical issue and therefore were of limited probative value.

(c) Did the General Division fail to consider whether the Appellant’s employment between 2006 and 2008 constituted a substantially gainful occupation?

[40] The General Division relied, in part, on the fact that the Appellant worked after his minimum qualifying period to find that he was not severely disabled for the purposes of the Canada Pension Plan.

[41] The Respondent submits that the General Division’s reasons regarding the Appellant’s employment in 2006 to 2008 was “merely illustrative” of its finding that the evidence did not establish that the Appellant was severely disabled at his minimum qualifying period and that he did not become disabled during the proration period.

[42] However, having relied on the fact that the Appellant was working when it decided whether he was severely disabled, the General Division did not examine whether that employment constituted a substantially gainful occupation. If it was going to base its decision, in part, on the fact that the Appellant was working, it should have ascertained whether that employment could in fact constitute a substantially gainful occupation.

[43] The Appellant had nominal earnings in 2006 and 2007, but they were roughly in line with his earnings from 1999 to 2003, before the Appellant was injured. He had earnings of approximately $3,500 and $9,000 for 2006 and 2007, respectively, with an hourly salary of $5.85.^{Footnote 8}  His earnings suggested that his employment may not have been substantially gainful, but several reports indicated that the Appellant was working on a full-time basis between 2006 and 2008.

[44] There is some evidence that the Appellant did not work throughout 2006 to April 2008. For instance, Dr. Sorhaindo noted that the Appellant remained unemployed when he saw the Appellant for a permanent medical impairment assessment in November 2006. The documentation is unclear why the Appellant was unemployed; there were no corresponding medical reports to suggest that his unemployment related to his medical condition.

[45] The Respondent argues that the Appellant was capable of and did maintain gainful employment, even if he felt that he had no options but to work, for financial reasons. He confirmed in his testimony before the General Division that he worked on a full-time basis from 2006 to 2008 as a supervisor and cleaner at a mall. His duties included removing garbage, cleaning windows, cardboard baling, pushing garbage cans, emptying garbage bags, sweeping and mopping.^{Footnote 9}

[46] The Respondent referred me to Poole v. Minister of Human Resources Development,^{Footnote 10} where the Pension Appeals Board noted that, in Boles v. The Minister of Employment and Immigration,^{Footnote 11} a substantially gainful occupation included “occupations where the remuneration for the services rendered was not merely nominal, token or illusory compensation but rather compensation which reflects the appropriate reward for the nature of the work performed.”

[47] The Respondent submits that, given that the Appellant’s employment between 2006 and 2008 was similar to the work performed before the end of his minimum qualifying period, his remuneration for this work cannot be said to have been merely nominal, token or illusory.

[48] The Respondent also relies on Fitzgerald v. Minister of Human Resources Development.^{Footnote 12} Ms. Fitzgerald resumed working shortly after an orthopaedic surgeon had recommended it to her, in January 1998. She continued working until September 1998 when, she says, she could no longer carry on because of pain. The Pension Appeals Board found that the fact that Ms. Fitzgerald was able to return to work in 1998 and earn approximately $5,000 supported the respondent’s position in that case that Ms. Fitzgerald was not severely disabled. The Board found it was relevant that the work was performed in the commercial setting and therefore more than merely doing household chores in her own residence at her own pace.

[49] The Respondent argues that the Appellant’s situation is similar to the one in the Fitzgerald case because he too worked in a commercial setting. The Respondent also notes that the Appellant worked in a similar capacity as he had throughout the majority of his work history before the end of his minimum qualifying period.

[50] I find the Respondent’s submissions persuasive on this point. Although there are gaps in the evidentiary record, the Appellant does not dispute the fact that he had been largely employed on a full-time basis between 2006 and 2008. It is of no excuse that he felt compelled to work because of financial constraints, if he was able to and did maintain regular employment, similar to his earnings levels and to the work that he had performed before the end of his minimum qualifying period. There is no indication that he was unable to perform this work or that he required any assistance with performing his duties until he began experiencing increasing neck pain towards 2008.

Conclusion

[51] Overall the General Division’s conclusions were consistent with the evidence before it. None of the early medical records established the onset of a severe disability before the end of the minimum qualifying period or within the proration period. As well, the Appellant resumed working in 2006. He described his employment from 2006 to April 2008 as “full time,” and, although he testified that he had no other options, he nevertheless exhibited the capacity regularly of pursuing a substantially gainful occupation well after the end of his minimum qualifying period had passed.

[52] Even if the General Division had not fully addressed whether the Appellant became severely disabled within the proration period, or even if it overlooked some of the medical evidence, given the medical records and the fact that the Appellant had been working on a full-time basis as described above, the General Division could not have arrived at any other conclusion. The appeal is accordingly dismissed.