Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed.

Overview

[2] M. H. (Claimant) worked as a retail clerk at a pet store until 2014 when she stopped work due to her fibromyalgia. She applied for a Canada Pension Plan (CPP) disability pension. The Respondent (Minister) denied her application both initially and on reconsideration. In 2016, the Claimant returned to the job at the pet store as she needed the income. The Claimant appealed to this tribunal and in June 2017, the General Division dismissed her appeal.

[3] In December 2017, the Appeal Division granted the Claimant leave to appeal the General Division’s decision. The Appeal Division found that it was arguable that the General Division’s decision contained both an error of fact and an error of law.

[4] The Appeal Division must decide whether the General Division made any errors set out in the Department of Employment and Social Development Act (DESDA).^{Footnote 1} If the General Division’s decision does contain an error, the Appeal Division must decide how to remedy that error.

[5] The General Division decision does contain an error of fact and an error of law. The Appeal Division allows the appeal and provides the decision the General Division should have given.

Issues

1. Did the General Division make an error of fact by deciding the Claimant’s disability was not severe without having regard for Dr. Harth’s 2015 report about the Claimant’s fibromyalgia?
2. Did the General Division make an error of law by finding that the Claimant had failed to exercise all treatment options for fibromyalgia and by finding that the Claimant had failed to comply with treatment for her mental health?

Analysis

The Appeal Division’s review of the General Division’s decision

[6] The Appeal Division does not provide an opportunity for the parties to re-argue their case in full at a new hearing. Instead, the Appeal Division conducts a review of the General Division’s decision to determine whether it contains errors. That review is based on the wording of the DESDA, which sets out the grounds of appeal for cases at the Appeal Division. The DESDA says that a factual error occurs when the General Division bases 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. For an appeal to succeed at the Appeal Division, the legislation requires that the finding of fact at issue from the general division’s decision be material (“based its decision on”), incorrect (“erroneous”), and made in a perverse or capricious manner or without regard for the evidence.

[7] By contrast, the DESDA simply says that a legal error occurs when the general division makes an error of law, whether or not the error appears on the face of the record.

Issue 1: Did the General Division make an error of fact by deciding the Claimant’s disability was not severe without having regard for Dr. Harth’s 2015 report?

[8] The General Division decision contains an error of fact. When reaching its findings about the Claimant’s fibromyalgia, the General Division did not have regard for Dr. Harth’s evidence from 2015. Dr. Harth’s 2015 report was important, and the General Division needed to discuss it because the report was issued closer to the end of the Claimant’s minimum qualifying period (MQP) than to her initial diagnosis, it summarized results of a physical examination and some assessments, and it contained a conclusion about the Claimant’s work capacity that was contrary to the General Division’s ultimate conclusion.

[9] In order to qualify for a disability pension under the Canada Pension Plan (CPP), a claimant must show a severe disability on or before the end of their MQP. A person who is incapable regularly of pursuing any substantially gainful occupation has a severe disability within the meaning of the CPP.^{Footnote 2} The General Division is presumed to have considered all of the evidence before it, but that presumption can be disproven where the probative value of the evidence is such that it should have been discussed.^{Footnote 3} A failure to consider crucial evidence can be an error of fact.^{Footnote 4}

[10] The Claimant’s MQP ended on December 31, 2016. In a letter dated August 17, 2015, Dr. Harth summarized the results of his physical examination of the Claimant, as well as the information he had gathered from her completion of two assessment tools (a fibromyalgia impact questionnaire and a health assessment questionnaire). Dr. Harth concluded that the Claimant was “work disabled.”^{Footnote 5}

[11] The General Division acknowledged that it was Dr. Harth who diagnosed the Claimant with fibromyalgia in 2012, and stated that “[w]hile Dr. Harth concluded that the [Claimant] was unable to work, he provided no other treatment suggestions for her pain.”^{Footnote 6} The General Division did not analyze the content of Dr. Harth’s opinion from August 2015, which was much closer in time to the end of the MQP than the initial diagnosis of 2012.

[12] The Claimant did not make additional submissions after the Appeal Division granted leave to appeal, and the time to do so has passed. However, in the application for leave to appeal, the Claimant argued that the General Division ignored Dr. Harth’s 2015 report, which specifically reviewed the results of his examination and his conclusion about the Claimant’s disability.

[13] The Minister concedes that the General Division committed both an error of law and of fact. The Minister states that 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.^{Footnote 7} The Minister acknowledges that the General Division did not consider and analyze Dr. Harth’s opinion of August 2015 which concluded, “[o]n the basis of these scores and on the basis of what she tells me, I think that this lady is work disabled. I think that this is unlikely to resolve in the foreseeable future.”^{Footnote 8}

[14] The General Division’s decision about the severity of the Claimant’s disability was made without reference to the evidence from Dr. Harth in 2015 and was therefore an error of fact. Dr. Harth’s report was important not only because it was dated closer to the MQP than his original 2012 diagnosis, but also because it provided an opinion about the Claimant’s ability to work based on a physical examination and the use of two assessment tools. Dr. Harth’s report was crucial and should have been discussed. It offered a specific conclusion about the Claimant’s ability to work that ran contrary to the General Division’s conclusion.

Issue 2: Did the General Division make an error of law by finding that the Claimant had failed to exercise all treatment options and to comply with treatment for her mental health?

[15] The General Division’s decision contains two related errors of law. First, the General Division made a finding that the Claimant had not complied with treatment. While there was some evidence that the Claimant refused to change her medication and was not yet in counselling, the General Division failed to consider (i) whether these alleged failures were reasonable; and (ii) what impact the failure to pursue those treatments had on the Claimant’s disability.^{Footnote 9} Those considerations are required in law when determining that a Claimant has not complied with treatment recommendations. The failure to complete that analysis when considering whether a Claimant has complied with treatment is an error of law.

[16] Second, the General Division relied heavily on information provided to it in the Minister’s submissions about fibromyalgia and its usual treatment when determining that the Claimant’s treatment was “conservative,” which contributed to the finding that the Claimant’s disability was not severe. The Minister did not provide any medical evidence about the usual treatment of fibromyalgia (it provided statements about fibromyalgia in general in its submissions). The treatment of fibromyalgia generally cannot form the basis for judicial notice. As a result, this reliance on the Minister’s general submissions about fibromyalgia as the   baseline for what constitutes “conservative” treatment of the Claimant was a finding made without evidence and therefore an error of law.

[17] In the leave to appeal decision, the Appeal Division encouraged the parties to make submissions on the General Division’s finding about work and fibromyalgia in general. The Minister has not addressed that issue in its submission, which focusses on the concession described above. The time for providing a submission on this issue has passed.

[18] In her submission on the application for leave to appeal, the Claimant argued that the General Division was in error when it concluded she had not exercised all available treatment modalities, that she was treated conservatively, and that, in general, activity is encouraged for people with fibromyalgia and work is not contraindicated.

[19] Under the heading “Submissions,” the General Division described the Minister to have argued as follows:

While Dr. Harth concluded that the [Claimant] was unable to work, he provided no other treatment suggestions for her pain. Fibromyalgia is a chronic pain syndrome, but it does not cause deterioration [sic] bones, joints [sic] her muscles. Experts recommend a multifaceted approach to treatment which includes exercise to reduce pain and strengthen muscles, medication to improve sleep and other symptoms and pain management to learn techniques to improve coping strategies. In general, activity is encouraged and work is not contraindicated.

[20] This argument from the Minister appears to have resonated with the General Division, and informed its conclusion:

However, the Tribunal has concluded that the [Claimant] has not exercised all available treatment modalities. Her fibromyalgia is treated conservatively and she has not yet engaged in counselling or other ongoing psychiatric therapies. In general, with fibromyalgia, activity is encouraged and work is not contraindicated.^{Footnote 10}

[21] The General Division raised the finding again in the context of its discussion on the Claimant’s work capacity and work efforts:

The Tribunal recognizes that the [Claimant] made an attempt to return to her previous employment on a part-time basis but again notes that not all available treatment options have been exercised for both her fibromyalgia and her mental health condition. It is the Tribunal’s position that the appellant retains the capacity for some type of work.^{Footnote 11}

[22] Failing to comply with treatment and failing to exercise all treatment options (namely being treated “conservatively”) are two different concepts. Refusing treatment unreasonably where there is an impact on the disability will mean claimants are ineligible for the disability pension.^{Footnote 12} However, being treated conservatively is different from failing to abide by treatment recommendations—claimants might follow all of the treatment recommendations that are made by their treatment teams, but if the condition is being treated “conservatively” by the treatment teams, there may not be many recommendations to follow. There is no stand-alone requirement for claimants to exhaust all treatment options (even those not put to them by their treatment team) in order to qualify for a disability pension. Claimants do, however, have an obligation to show efforts to manage their medical conditions.^{Footnote 13}

[23] In this case, the General Division concluded that the Claimant refused some treatment for her mental health conditions and that she had not exhausted all treatment options for her fibromyalgia (namely, the fibromyalgia was treated “conservatively”). The General Division concluded that the Claimant had not established that her condition is severe.

[24] With respect to the Claimant’s treatment for mental health, there was evidence in the record that she was not in counselling and that she had refused to accept a recommendation that she try Cipralex. However, the General Division did not address the Claimant’s testimony about the reasons for refusing that medication and for not having started counselling yet. The General Division needed to consider that evidence to determine whether the refusals were reasonable. The General Division also needed to consider what impact those treatments would have had on the disability. Relying on the Claimant’s failure to pursue those treatments without engaging in the required analysis is an error of law.

[25] With respect to her treatment for fibromyalgia, there was evidence that the Claimant’s specialist recommended exercise and medication. The General Division concluded that the Claimant’s treatment meant that the Claimant’s disability was not severe, in part because her fibromyalgia was treated conservatively. In order to reach that conclusion, the General Division needed to rely on evidence about the general treatment of fibromyalgia versus the way in which the Claimant’s fibromyalgia was treated by her treatment team.

[26] The Minister provided no expert medical evidence at hearing that would have been subject to cross examination to support its statements describing the usual treatment modalities for fibromyalgia. The Minister led no expert evidence to support its statement that, in general, activity is encouraged and work is not contraindicated for fibromyalgia, or to support the “multi-faceted” approach it described. The General Division’s statements about the general treatment of fibromyalgia are not notorious or capable of immediate demonstration, so they cannot form the basis for judicial notice.^{Footnote 14}

[27] The General Division did not have an evidentiary foundation before it to conclude that the Claimant was treated “conservatively” for fibromyalgia, and therefore the General Division made an error of law.^{Footnote 15}

Remedy

[28] The Appeal Division has several options to remedy errors in General Division decisions.^{Footnote 16} Among those options, the Appeal Division can give the decision that the General Division should have given, or refer the case back to the General Division for reconsideration. The Appeal Division has the ability to decide any question of fact or law before it.^{Footnote 17}

[29] The Minister requested that the Claimant’s case return to the General Division for a new (de novo) hearing by a different member.

[30] However, given that the existing record contains both Dr. Harth’s 2015 report and a recording of the oral hearing, and the Appeal Division has the explicit ability to decide any question of fact before it, the Appeal Division will make the decision that the General Division should have made. Since the record is complete, providing the decision that the General Division should have provided is consistent with the Social Security Tribunal Regulations,^{Footnote 18} which require conducting proceedings as informally and quickly as the circumstances and the considerations of fairness and justice permit.

Decision the General Division should have given

[31] As will be explained below, the Claimant proved on a balance of probabilities that she had a severe and prolonged disability on or before December 31, 2016, which was the day her MQP ended.

[32] The Claimant is incapable regularly of pursuing any substantially gainful occupation, and her disability is likely to be long continued and of indefinite duration. The Claimant’s appeal is therefore allowed.

[33] The balance of the evidence establishes that the Claimant had a severe disability on or before December 31, 2016. The Claimant became disabled in July 2014 when she stopped being capable regularly of pursuing any substantially gainful employment (she had stopped working due to symptoms of her fibromyalgia).

[34] Evidence from both the Claimant’s family physician (Dr. Crabbe) and the specialist (Dr. Harth) support a conclusion that the Claimant’s disability was severe on or before the end of the MQP. Dr. Harth diagnosed the Claimant with fibromyalgia in June 2012. Medical notes from 2012 state that the Claimant had variable days of pain, and that at that time she was “able to help at [the] store as [it] is family run.”^{Footnote 19} The Claimant continued to work at the pet store despite her diagnosis until the end of July 2014. However, Dr. Crabbe’s notes state that in 2013 she was working three hours per day, and there are notations about work-related stress even in 2012.^{Footnote 20} In November 2014, Dr. Crabbe reported that the Claimant’s pain limited her from performing routine activities at work. And although Dr. Crabbe stated in 2014 that the Claimant showed a 70% improvement in her fibromyalgia symptoms with the use of Cymbalta, it is notable that Dr. Crabbe stated the Claimant was still “quite limited.” Dr. Crabbe also wrote quite clearly in her notes that the Claimant had been “unable to work on medical grounds due to chronic pain from fibromyalgia. She has been unable to work since July 28, 2014, and is unable to work for the foreseeable future.”^{Footnote 21}

[35] The Appeal Division relies heavily on Dr. Harth’s 2015 report for the reasons stated earlier: Dr. Harth is a specialist, the report was written in the final year of the MQP, it documents the results of two assessments, and it addresses the Claimant’s capacity for work directly. Dr. Harth’s report notes that the Claimant complained that her condition had deteriorated since the time of her initial diagnosis in 2012.^{Footnote 22} Dr. Harth conducted two assessments and concluded based on those assessments that the Claimant showed deterioration since he had last seen her, and that she is “work disabled.” In terms of a prognosis, he stated that the Claimant’s conditions were unlikely to resolve in the foreseeable future.^{Footnote 23}

[36] The report describes the Claimant’s “widespread pain” in the upper anterior chest, temporomandibular joints, neck, shoulders, upper arms, forearms, hands, wrists, thoracic and lumbar spines, lateral aspect of the left thigh, anterior thighs, knees, calves, feet, and ankles. The report states that she occasionally has migraine headaches and that she has “severe fatigue, a severely disturbed sleep, and severe problems with memory and concentration”.^{Footnote 24}

[37] Dr. Harth noted that the Claimant’s scores on the assessments showed that she had “much difficulty” in conducting a series of routine day-to-day activities, including self-care tasks like shampooing her hair and taking a bath, and activities of daily living like getting up from an armless chair, opening jars, and completing errands and shopping.^{Footnote 25}

[38] This evidence from a treating specialist close to the time of the MQP is not contested and is based on assessments. It is highly relevant and is consistent with a conclusion that the Claimant had a severe disability on or before the end of the MQP.

[39] Dr. Harth’s report does not identify any kind of accommodations that would help the Claimant to work, it does not identify any work that the Claimant might have been able to do that was different from her regular job at the pet store, and it does not state that part-time hours would be possible. The use of the term “work disabled” in this report echoes the conclusion that Dr. Crabbe reached about the Claimant’s ability to work in 2014.

[40] All of the possible impairments that affect the Claimant’s employability must be considered, not just the biggest impairments or the main impairment.^{Footnote 26} Although her fibromyalgia has been identified as the main condition, the Claimant also has severe anxiety and depression (and obsessive-compulsive behaviours), which contribute to her incapacity regularly of pursuing any substantially gainful employment.

[41] The Appeal Division accepts the Claimant’s own testimony about the way her anxiety and depression impacted her day-to-day living on or before the end of the MQP. She testified that she is too anxious to use devices like her tablet and cell phone, does not get off the couch or bed for three to four days a week, is germophobic and washes her hands with bleach (including at work when she has come in contact with an animal), and does not like to be around people.

[42] In April 2015, the Claimant saw Dr. Nowicki, who noted numerous rituals compatible with a diagnosis of obsessive-compulsive disorder (OCD).^{Footnote 27} Dr. Nowicki confirmed that the Claimant expressed an interest in individual counselling, and stated that the Claimant would be seen again to discuss treatment options. Dr. Nowicki stated that the Claimant might benefit from a higher dose of Cymbalta or another antidepressant and the addition of a mood stabilizer.

[43] The Claimant gave evidence at the hearing about her experience with Dr. Nowicki: her consultation with Dr. Nowicki was not productive and the Claimant was not able to form a constructive patient-physician relationship. After the second visit, the Claimant was prescribed Paxil. The Claimant testified that she had her concerns about taking that medication based on a previous experience, but she agreed to try it. The Claimant gave evidence explaining that (and there is support in the record^{Footnote 28}) she experienced a serious deterioration in her mental health after taking this medication, which culminated in a visit to the emergency room due to suicidal thinking.

[44] Dr. Lefcoe, a psychiatrist, noted that the Claimant’s mental status was normal in the spring of 2016 but that she had symptoms of a mood disorder, which may be major depressive disorder, along with possible OCD and post-traumatic stress disorder. He recommended the use of Cipralex and counselling. He did not provide an opinion about the Claimant’s capacity to work, which makes some sense as he noted that she was not working at the time due to her fibromyalgia.^{Footnote 29} Dr. Lefcoe noted that the Claimant agreed to counselling 2.5 mornings per week, in the form of cognitive behavioural therapy at the London Health Sciences Centre with follow-up at the mental health adult outpatient clinic.^{Footnote 30}

[45] Where there is evidence of work capacity, the Claimant must show that efforts to obtain and maintain employment were unsuccessful because of the health condition.^{Footnote 31} The Claimant does not have the capacity for some other type of work.

[46] The medical evidence shows that the Claimant has significant functional limitations. As set out in Dr. Harth’s reports, her physical limitations in terms of day-to-day tasks are significant. The Claimant’s evidence was that, when she was working at the pet store from 2008 to 2014, she was given full pay even though she was in late or not in at all. She gave evidence about the pain and exhaustion she experienced in 2014 when she stopped working. She described stopping work as a “sad day” and about the strain that working with her husband took on her (because she stated he was doing her job). The Claimant gave evidence about how her rituals and anxieties made it difficult for her to complete her job in the store, including coming into contact with pets.

[47] The fact that the Claimant attempted a return to work in 2016 is not evidence of work capacity to the extent that the Claimant needs to show that efforts to obtain and maintain employment were unsuccessful by reason of her health condition.

[48] The General Division found that the Claimant had a capacity to work and therefore that she did not show that efforts at obtaining and maintaining employment were unsuccessful by reason of her health condition. However, the General Division’s finding about capacity to work stated simply that

The Tribunal recognizes that the [Claimant] made an attempt to return to her previous employment on a part-time basis but again notes that not all available treatment options have been exercised for both her fibromyalgia and her mental health condition. It is the Tribunal’s position that the [Claimant] retains the capacity for some type of work.

[49] Since the Appeal Division has found that the General Division’s findings about the Claimant’s compliance with treatment are in error, the basis for the finding of work capacity also does not stand. Generally speaking, efforts at employability are relevant—the Claimant worked in 2016, but the work did not show that she was capable regularly of a substantially gainful occupation.

[50] The Appeal Division accepts the Claimant’s evidence about the fact that she returned to the pet store because she needed money. It is her former spouse’s business, her disability took a toll on the relationship, and she described the stress of her spouse having to do her job for her. She was scheduled for 15 hours per week, and she frequently left early and occasionally did not report for work at all due to her disability.

[51] Medical notes from April of 2016 suggest the Claimant was working two days per week, two hours per day.^{Footnote 32} This work does not show that the Claimant is capable regularly of pursuing a substantially gainful employment. She was not reliable in the sense that she did not complete her shifts (which already amount only to part-time hours) predictably.

[52] In January 2016, Dr. Chande noted that the Claimant’s Crohn’s disease was in remission. The Claimant gave evidence about the impact the side effects of her Crohn’s disease medication was having on her capacity to work. Regardless of this evidence, the Claimant established that her disability was severe based on the cumulative impact of her mental health conditions and her fibromyalgia.

[53] Given that the Claimant’s medical evidence shows an absence of work capacity, the Appeal Division will not assess the Claimant’s personal circumstances as they relate to her employability.^{Footnote 33}

[54] The Claimant has made reasonable efforts to follow recommended treatments both for her mental health and for her fibromyalgia.

[55] The record shows that, in 2014, the Claimant was hesitant about changing her medication as recommended by Dr. Crabbe, but that she decided to wait for an appointment with a specialist (psychiatrist Dr. Nowicki) before making a change. The physician advised the Claimant that her “unwillingness to optimize meds” may be an issue for her disability claim.^{Footnote 34} Dr. Crabbe later noted the Claimant’s unwillingness to try the medication change once it was recommended by Dr. Nowicki.^{Footnote 35} The notes state that Dr. Crabbe discussed with the Claimant that trying the medication “may be necessary given Dr. Nowicki’s consult and her CPP application”. Dr. Nowicki went on to say that “M. H. needs to do what she can to help herself.”

[56] The Claimant testified that she was afraid of trying Paxil due to an adverse reaction to the drug that she had years before. She ultimately complied with Dr. Nowicki’s medication recommendation (namely, Paxil) in the summer of 2014. The Claimant saw Dr. Nowicki only twice and testified about the problems she had in working with this physician. The Claimant testified that, following the medication change, she started having nightmares, her mind was racing, she had bad OCD, and she had anxiety attacks. She testified that, by Christmas 2014, she was not coming out of her bedroom for days at a time and she was very depressed. She testified that, by March 2015, it was so bad that she could not go outside and that her husband could not leave her side. She had suicidal thoughts. She sought psychiatric help on an emergency basis in the spring of 2015.

[57] The Claimant testified that psychiatrist Dr. Lefcoe then advised her that she never should have been on the Paxil recommended by Dr. Nowicki. Dr. Lefcoe suggested a change to Cipralex in 2016.^{Footnote 36} The Claimant had not yet tried that medication change at the time of the hearing in early 2017. The Claimant testified that she was not comfortable with that medication recommendation. The Appeal Division finds the Claimant’s discomfort was not unreasonable given the Claimant’s evidence about her previous experience with a medication change she believes caused her decline in mental health and suicidal ideation in 2015. This was no doubt a traumatic experience, and it is not unreasonable for the Claimant to be hesitant about changing her medications. There is precedent for her attempting new medications, but not always immediately after the recommendation is made. In any event, it is unclear from the record what impact said medication change would have on her disability since the main condition is still fibromyalgia.

[58] The Claimant also testified that, while she was not seeing a psychologist at the time of the hearing in February 2017, she would be seeing a counsellor in March 2017. She indicated she had been waiting for referrals. The Appeal Division accepts the Claimant’s evidence and concludes that she has not failed to comply with the recommendation for counselling.

[59] Similarly, the Claimant has reasonably complied with treatment for her fibromyalgia. When she was first diagnosed in 2012, Dr. Harth made a series of recommendations to the Claimant about low-impact exercise in the gym and walking, as well as medication (Lyrica).^{Footnote 37}

[60] The Claimant testified that she tried the Lyrica and that it did not work. She was also on Cymbalta, and her evidence was that the increased dosage of Cymbalta did not help her either. The Claimant gave evidence that she tried physiotherapy at one point, which did help but that she was unable to continue for financial reasons. This is not unreasonable. The Claimant’s evidence was that she followed the advice about going to the gym in 2012, but, as her symptoms worsened, she was no longer able to work out and went to see Dr. Harth again to address the deterioration in her health condition in 2015. This is not unreasonable. Following Dr. Harth’s assessments in 2015, he recommended walking for exercise. The Claimant’s testimony was that she attempted to follow Dr. Harth’s recommendation but that she was walking alone and experienced falls, including one fall in which she was injured.

[61] To the extent that any of these attempts to comply with treatment failed, they are not unreasonable in the circumstances.

The Claimant’s disability is prolonged

[62] The Claimant’s disability is prolonged.

[63] To qualify for a disability pension, a Claimant’s disability must be prolonged, which for the purpose of the CPP means that the disability is likely to be long continued and of indefinite duration.

[64] Dr. Crabbe was clear in 2014 that the Claimant’s fibromyalgia, which is the main condition, is unlikely to resolve in the foreseeable future.^{Footnote 38} That evidence was not contested. In the initial medical report from 2014, Dr. Crabbe stated that the prognosis was guarded, despite ongoing psychiatric treatment for the Claimant’s symptoms of anxiety and depression.^{Footnote 39}

[65] The Claimant’s conditions are likely to be long continued and of indefinite duration, and therefore her disability is prolonged within the meaning of the CPP.

Conclusion

[66] The appeal is allowed.

[67] The Claimant became disabled in July 2014 when she stopped being capable regularly of pursuing any substantially gainful employment (she stopped working due to her fibromyalgia). The Claimant became disabled within the 15-month maximum retroactivity period permitted under the CPP. Payment of the disability pension begins four months after the date of disability, so payment begins effective November 2014.^{Footnote 40}