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Decision
[1] The Claimant is entitled to a Canada Pension Plan (CPP) disability pension to be paid as of June 2014.
Overview
[2] The Minister received the Claimant’s application for the disability pension on May 5, 2015. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.
[3] To qualify for a CPP disability pension, the Claimant must meet the requirements that are set out in the CPP. More specifically, the Claimant must be found disabled as defined in the CPP on or before the end of the minimum qualifying period (MQP). The calculation of the MQP is based on the Claimant’s contributions to the CPP. I find the Claimant’s MQP to be December 31, 2013.
Issue(s)
[4] Did the Claimant’s conditions, being left wrist fracture, left shoulder impingement, and left upper extremity Chronic Regional Pain Syndrome (CRPS), result in the Claimant having a severe disability, meaning incapable regularly of pursuing any substantially gainful occupation by December 31, 2013?
[5] If so, was the Claimant’s disability also long continued and of indefinite duration by December 31, 2013?
Analysis
[6] Disability is defined as a physical or mental disability that is severe and prolongedFootnote 1. A person is considered to have a severe disability if 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. A person must prove on a balance of probabilities their disability meets both parts of the test, which means if the Claimant meets only one part, the Claimant does not qualify for disability benefits.
Severe disability
The Claimant’s disability was severe by December 31, 2015.
[7] The Claimant was fifty-two years old at her MQP. She has a Bachelor of Arts (1985) and a Masters (2017) degree. She worked from 1979-2009 in the pharmaceutical industry in various positions, including office and sales positions. She stopped working in the pharmaceutical industry due to extensive travel requirements. She worked self-employed as a graphic facilitator consultant from January 2011 until she sustained injuries in a fall on December 15, 2013, and save for working as a part time graduate student instructor, has not worked since.
[8] The Claimant sustained a comminuted fracture of the left radius and a left rotator cuff tear on December 15, 2013. The fracture was treated with open reduction internal fixation (ORIF). She attended a multi-disciplinary chronic pain rehabilitation program, physiotherapy and occupational from January 2014-December 2014 without significant benefit. She developed left upper extremity CRPS shortly after sustaining the injury in December 2013. She has suffered from severe debilitating left upper extremity pain since despite treatment. She attended aqua therapy since 2014 as tolerated. In this latter regard, the Claimant said any exercise, including aqua therapy and walking, results in a severe escalation of the constant upper extremity pain she has suffered from since December 2013. The Claimant’s sleep is disrupted by pain. She is only able to sleep a few hours each night due to pain resulting in constant exhaustion and fatigue.
[9] The Claimant trialled several pain medications, including Oxycontin, Hydromorphone, and Tylenol 3, after discharge from hospital following wrist surgery in December 2013. She stopped taking the medication because of side effects, including hallucinations and grogginess, concerns regarding addiction, and absence of any significant benefit. A trial of Lyrica was suggested. She did not take Lyrica after consultation with her family physician because of the same issues. She noted, as the narcotic pain relievers trialed did not help, her family physician said Lyrica, a less potent pain reliever, would not likely provide any benefit. The Claimant has complied with all other treatment recommended by her treating physicians.
[10] The Claimant began pursuing a Masters degree online in September 2013. She obtained a leave of absence from the program following the injury in December 2013, resumed participation in January 2015, and completed the program in August 2017. She worked online from home as a graduate student instructor for two semesters in 2016 and one in 2017, never more than two hours a day. She worked on her Masters when semesters ended. She was able to pace herself, never working more than ten hours a week. She was unable to do all duties of a student assistant, namely working more than two hours a day, due to pain. The Claimant said she is unable because of her condition to work at any position other than a part time online position that does not require her to work regularly or meet a schedule due to the unpredictability of increased intensity of the constant debilitating pain she has suffered from since December 2013.
[11] The Claimant said her condition has not improved significantly despite treatment since injured in December 2013. She continues to experience severe constant daily pain of an intensity of at least 6/10 on a scale of 1-10 with 1 being the least pain experienced and 10 being the most. She experiences pain of an intensity of 10/10 after any light exercise or modest activity including walking or use of her left upper extremity. Her physicians have told her that further treatment will not result in any significant improvement in pain intensity, and could result in a worsening of her condition. She discussed with her physicians whether any benefit could be attained by amputation of her left upper extremity. She was advised such treatment would not likely provide any significant relief. She sees her family physician infrequently regarding her left upper extremity, as he has advised there is nothing more he can offer her that will provide pain relief.
[12] Dr. Petroff, the Claimant’s long time family physician, completed the initial medical report dated December 14, 2014Footnote 2. His diagnosis was chronic regional pain syndrome-left wrist/arm. He noted the Claimant sustained a comminuted fracture of the left radius in December 2013, which required open reduction, a left rotator cuff tear, and left shoulder impingement. He indicated the Claimant has decreased left wrist range of motion, ongoing pain and stiffness in her left wrist, hand/fingers, and arm, decreased left shoulder range of motion and stress pain consistent with a rotator cuff tear, tendonitis and impingement. Dr. Petroff reported the Claimant’s treatment included ORIF of fractured left wrist, physiotherapy, and pain clinic management, including stellate nerve blocks for ongoing pain. Dr. Petroff’s prognosis was guarded. He noted the Claimant most likely will continue to suffer from CRPS permanently. He reported the Claimant’s desire to minimize the amount the medication she takes does not reflect, and should not be interpreted as an absence of ongoing chronic pain.
[13] Dr. Porte, the orthopaedic surgeon who treated the Claimant’s left distal radius fracture with ORIF on December 23, 2013 reported February 3, 2014Footnote 3 the Claimant’s hand and fingers are swollen, she has limited mobility of her fingers and wrist, and she continues to be quite sore. Dr. Porte’s diagnosis was early CRPS. . He referred the Claimant to occupational therapy, physiotherapy, and to a pain clinic for assessment and treatment.
[14] Dr. Porte reported March 21, 2014Footnote 4 the Claimant developed complex regional pain syndrome subsequent to ORIF of a complex distal radius fracture. He again noted he referred her to a pain clinic, and arranged for physiotherapy and occupational therapy. He noted she declined stellate blocks and Lyrica. He reported the Claimant is showing increased signs of chronic CRPS. He indicated she probably will not regain full finger and wrist range of motion.
[15] Dr. Porte reported June 26, 2014Footnote 5, the Claimant continues to have persistent pain and stiffness in her left hand and persistent shoulder pain after appropriate physiotherapy and cortisone injection. Additionally, he reported the Claimant’s AC joint is tender and she has positive impingement signs. He arranged for an MRI scan to rule out a rotator cuff tear. Dr. Porte noted he has referred the Claimant to another orthopaedic surgeon as he is relocating.
[16] Dr. Lobo, orthopaedic surgeon, completed a Discharge Report dated August 17, 2014. He noted the Claimant’s CRPS treatment included two stellate ganglion blocks, but she still has functional limitations with respect to her left hand, ongoing pain, and hypersensitivity. He reported Dr. Porte gave her a steroid injection, which was not beneficial. He noted an MRI scan showed a tear of the supraspinatus tendon and chondrosis in the glenohumeral joints. Dr. Lobo’s diagnosis was a left partial to full thickness rotator cuff tear with subacromial impingement. He noted surgery may not be helpful, and may exacerbate her CRPS and the dysfunction of her left hand. He reported there are no other treatment options for her entire left upper extremity, and he has no further treatment suggestions for ongoing management of the shoulder. The evidence of the Claimant is to the effect she attended physiotherapy, occupational therapy, and multi-disciplinary pain management sessions throughout 2014 without benefit.
[17] The Claimant was a credible witness. I accept her evidence describing the debilitating symptoms she has suffered from and her difficulty functioning on a daily basis since she sustained injuries in December 2013. There was no indication in exaggeration in her presentation, and no mention of it in the medical reports that I find support much of her evidence. None of the Claimant’s treatment providers suggested the Claimant’s symptoms did not exist, or are exaggerated, and none suggested she is malingering.
[18] I must assess the severe part of the test in a real world contextFootnote 6. This means that when deciding whether a person’s disability is severe, I must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. The Claimant was fifty-two years old at her MQP, being several years younger than the traditional retirement age in Canada, is well educated, is proficient in English, and has a significant and varied work history. I find the Claimant’s personal factors do not affect her capacity to work by December 31, 2013.
[19] Where there is evidence of work capacity, a person must show that efforts at obtaining and maintaining employment have been unsuccessful because of the person’s health conditionFootnote 7. The Claimant worked from home not more than ten hours a week as a teaching assistant for three semesters after injured. She paced herself, but was still unable to fulfil all the duties of the position. She worked despite pain, fatigue, and cognitive difficulties. The evidence of the Claimant and medical reports are to the effect the Claimant has suffered from severe debilitating pain since injured in December 2013. I find the Claimant’s desire to pursue some type of substantially gainful work even online work at home on a regular basis unrealistic due to her severe debilitating constant pain, which is exacerbated by minimal activity. I find no evidence of capacity to regularly pursue substantially gainful employment since December 2013.
[20] A Claimant must mitigate his or her impairments by pursuing all recommended treatment optionsFootnote 8. The Claimant has not taken Lyrica, a pain medication recommended for treatment of her condition shortly after she sustained the injuries in December 2013. She did not do so because of side effects and ineffectiveness of medications trialled, and addiction concerns. Her family physician advised Lyrica would also likely to be of no benefit. The Claimant pursued all other treatment recommendations without significant benefit. I find the Claimant’s stated reasons for not taking Lyrica reasonable.
[21] The onus is on the Claimant to prove on the balance of probabilities her entitlement to CPP disability benefits. I find the Claimant established she has been incapable regularly of pursuing any substantially gainful occupation since December 2013. I find the Claimant’s disability severe by December 2013.
Prolonged disability
The Claimant’s disability was prolonged by December 31, 2013.
[22] The evidence substantiates the Claimant has suffered from severe debilitating left upper extremity pain since December 2013 without improvement or expectation of improvement. I find the Claimant’s disability is likely to be long continued and of indefinite duration, and accordingly prolonged by December 2013.
Conclusion
[23] The Claimant had a severe and prolonged disability in December 2013, when she sustained injuries to her left upper extremity. However, to calculate the date of payment of the pension, a person cannot be deemed disabled more than fifteen months before the Minister received the application for the pensionFootnote 9. The application was received in May 2015 so the deemed date of disability is February 2014. Payments start June 2014, being four months after the deemed date of disabilityFootnote 10.
[24] The appeal is allowed.