Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not entitled to a Canada Pension Plan (CPP) disability pension.

Overview

[2] The Claimant was 44 years old when she applied for a CPP disability pension in March 2016. She last worked as a Personal Support Worker in August 2015, and stated that she has been unable to work since then because of constant migraines, vertigo (dizziness), tinnitus (ringing in her ears), nausea, poor balance, and inability to safely operate a motor vehicle. The Minister denied the application initially and upon reconsideration, and the Claimant appealed to the Social Security Tribunal.

Preliminary matters

[3] In her notice of appeal the Claimant raised potential constitutional issues. On May 4, 2018 I directed that the appeal should proceed as a regular appeal because the Claimant had failed to file a notice in accordance with paragraph 20(1)(a) of the Tribunal Regulations. I scheduled a videoconference hearing for July 19, 2018. On July 19, 2018 I adjourned the hearing because the Claimant indicated that she wished to pursue a constitutional challenge. The Claimant filed a notice of her intent to pursue a constitutional challenge on October 19, 2018, but she did not set out the specific provisions of the CPP or regulations that she was putting at issue. On October 23, 2018 I directed the Claimant to file in writing the specific provisions of the CPP that she is putting at issue, but the Claimant failed to do so. On January 2, 2019 I determined that the Claimant’s notice of intention to pursue a constitutional challenge did not comply with the requirements of paragraph 20(1)(a) of the Regulations, and directed that the appeal proceed as a regular appeal.^{Footnote 1}

[4] I then scheduled the appeal to be heard by videoconference. The Tribunal records confirm that a new notice of hearing was sent to the Claimant by pre-paid courier on January 7, 2019 addressed to her home address as indicated in the Tribunal records. The notice of hearing stated that the appeal was to be heard by videoconference on February 28, 2019 and set out the location where the Claimant should attend for the hearing.

[5] On January 21, 2019 the Claimant signed a receipt confirming that the notice had been delivered to her. On February 21, 2019 the Registry Officer left a voice mail message for the Claimant reminding her of the videoconference hearing scheduled for February 28.

[6] The Claimant did not attend the hearing.

[7] The Tribunal has received no further communication from the Claimant and there is no indication that she has made efforts to contact the Tribunal to explain why she did not participate in the hearing.

[8] If a party fails to appear at a hearing, I may proceed in the party’s absence if I am satisfied that she received the Notice of Hearing.^{Footnote 2}

[9] I am satisfied the Claimant received the Notice of Hearing and that she was aware of the date and location of the hearing because she signed a receipt for it. She has provided no reason why she did not attend.

[10] I proceeded in the Claimant’s absence and made my decision based on the documents and submissions filed.

Issue(s)

1. Did the Claimant’s medical conditions result in her being incapable regularly of pursuing any substantially gainful employment by June 30, 2012?
2. Alternatively, did her medical conditions result in her being incapable of regularly of pursuing any substantially gainful employment commencing in 2016 and by February 29, 2016?
3. If so, is her disability long continued and of indefinite duration?

Analysis

Test for a disability pension

[11] A qualifying disability must be severe and prolonged.^{Footnote 3} A disability is severe if it causes a person to be incapable regularly of pursuing any gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration.

[12] The Claimant must prove on a balance of probabilities that she became disabled on or before the end of her Minimum Qualifying Period (MQP), which is calculated based on her contributions to the CPP. Her MQP ended on December 31, 2011.^{Footnote 4}

[13] The Claimant had earnings of $2,746 in 2012.^{Footnote 5} This amount is below the minimum level of earnings required to make valid contributions to the CPP. In this situation, the law allows for proration of the below minimum level of earnings to help a person meet contributory requirements. If the Claimant became disabled commencing in 2012, she will qualify for the disability pension if she became disabled before the end of June 2012.

[14] The Claimant also had substantial earnings from 2013 to 2015: $24,003 in 2013, $44,893 in 2014, and $24,800 in 2015. Since these earnings were for only three years, they did not advance her MQP. However, she had below minimum level of earnings of $1,140 in 2016. If she became disabled commencing in 2016, she will qualify for the disability pension if she became disabled before the end of February 2016.

Severe disability

[15] The CPP is an insurance regime based on contributions. The difficulty facing the Claimant is that she is only covered for conditions that became severe on or before June 2012, or alternatively, conditions that became severe commencing in 2016 and before the end of February 2016.

[16] Unfortunately, her disability became severe in 2015, which is outside the periods covered by the CPP. This was after June 2012, but prior to 2016.

[17] In her disability questionnaire, the Claimant stated that she stopped working in August 2015, and that she was no longer able to work as of that date.^{Footnote 6} At the initial hearing on July 19, 2018 the Claimant confirmed that she had not been able to work since August 2015. Although she had suffered a concussion in 2011 and been off work for 1 ½ years, she was able to work as a Personal Support Worker from 2013 to 2015. Her small earnings in 2016 were for vacation pay.

[18] The medical evidence confirms that the Claimant’s disability became severe in 2015:

• In August 2015 Dr. Brodi, neurologist, stated the Claimant attended at the Ottawa Hospital emergency department because of an episode of unsteadiness on her feet, expressive aphasia (inability to speak), and spasms in her wrists and fingers. She had a nine week history of headaches with fluctuating severity.^{Footnote 7}
• In her March 2016 CPP medical report Dr. Khazzam, the Claimant’s long-standing family doctor, diagnosed chronic daily headaches. She stated that she had started to treat the Claimant for her main condition in February 2015.^{Footnote 8}
• In May 2016 Dr. Christie, from the Ottawa Headache Centre, stated that although the Claimant had suffered from headaches since she was a teenager, in April 2015 they increased in both frequency and severity. After an episode on August 2, 2015 in which she had difficulty walking and sleeping, she went to the Ottawa Hospital emergency department. Since then she had not been able to walk properly, needed a walker, and had been bedridden throughout the day.^{Footnote 9}

[19] I am sympathetic to the Claimant’s situation but I am bound by the CPP provisions. I cannot exercise any form of equitable power in respect of the appeals coming before me. The Tribunal is a statutory decision-maker and I am required to interpret and apply the provisions as they are set out in the CPP.

[20] I have no authority to make exceptions to the provisions of the CPP, nor can I render decisions based on fairness, compassion, or extenuating circumstances.

[21] The Claimant has failed to establish, on the balance of probabilities, a severe disability in accordance with the CPP requirements.

Conclusion

[22] Reluctantly, I dismiss the appeal.