Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is entitled to a Canada Pension Plan (“CPP”) disability pension, to be paid as of February 2017.

Overview

[2] The Claimant is currently 55 years old. He had worked as a federal public servant. He struck his head in March 2015, suffering a concussion and then a post-concussion syndrome. He last worked on May 5, 2015. The Minister received his disability pension application on January 23, 2018. In his application, the Claimant said he was unable to work because he could not concentrate for more than five minutes, had frequent headaches, was always tired, had difficulty with crowds, could not retain more than one page of reading, had to nap for 2-3 hours every day, and was depressed. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

Issues

[4] Did the Claimant’s conditions result in a severe disability by his MQP date? In other words, was he incapable regularly of pursuing any substantially gainful occupation by December 31, 2018?

[5] If so, was the Claimant’s disability also prolonged?

Analysis

[6] Disability is defined as a physical or mental disability that is severe and prolonged.^{Footnote 1} A person is considered to have a severe disability if he is 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 that his disability meets both parts of the test. If the Claimant meets only one part, he does not qualify for disability benefits.

Did the Claimant have a severe disability by December 31, 2018?

[7] For the reasons that follow, I find that the Claimant had a severe disability in May 2015.

[8] I must assess the Claimant’s condition in its totality, which means I must consider all of the possible impairments, not just the biggest impairments or the main impairment.^{Footnote 2} I must also assess the severe part of the test in a real-world context.^{Footnote 3} 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.

[9] At his MQP date, the Claimant was 54 years old. He speaks English and French fluently. After attending a CEGEP, he completed a university certificate in social sciences and had a lengthy career in the federal public service. He worked most recently as an X for the X. He held this important role for at least ten years, although he had been at X for more than 23 years: he started working in the mailroom and rose through the ranks. He previously worked for X (as it was then called), where he helped with a major litigation matter. Based solely on his personal characteristics, and without regard for his medical condition, I find that the Claimant would be suited for a broad range of sedentary roles.

[10] In assessing whether the Claimant had a severe disability by December 31, 2018, I place significant weight on the January 8, 2018, medical report by Dr. Sandeep Nagpal (Family Physician). Dr. Nagpal had known the Claimant for five years, and started treating the Claimant’s concussion and resultant post-concussion syndrome right after it occurred in March 2015.^{Footnote 4} Dr. Nagpal also made referrals to, and received reports from, treating specialists such as Dr. Claire Vayalumkal (Physical Medicine & Rehabilitation). Accordingly, Dr. Nagpal was well positioned to accurately assess the Claimant’s diagnoses, limitations, and prognosis.

[11] Dr. Nagpal said the Claimant had frequent headaches, difficulty expressing himself, poor sleep, poor memory, difficulties in crowded rooms, and an inability to concentrate for more than five minutes. He could only read for 10 minutes, and had difficulty understanding what he was reading. He took naps during the day, because of his fatigue, and his depression had worsened.^{Footnote 5}

[12] At the hearing, the Claimant said there were a number of reasons that prevented him from working. These reasons closely paralleled what Dr. Nagpal had reported in January 2018. The Claimant said he is still extremely tired: he sleeps for 11-12 hours each night, and then requires a nap of 2-3 hours during the day. Even when he is awake, he has no energy. He has debilitating headaches roughly every other day that last for four hours. He cannot concentrate, and is exhausted after doing a task for only one hour. He cannot read more than one page, and cannot remember what he has read. It is still difficult to have many people around. He said these reasons also applied to him at his December 2018 MQP date. He said his concussion symptoms were essentially unchanged from 2015 until the date of the hearing, although he no longer has any neck pain. These complaints were consistent with his November 2018 Notice of Appeal.^{Footnote 6}

[13] The Claimant also said he needs to sleep after seeing people, and has to leave social engagements early. He relies on his wife to keep track of things such as appointments. He can drive for one hour at the most. He said the hearing had made him very tired, although it only lasted about one hour. He has not applied for any work, or engaged in any volunteer activities, because he has no energy and cannot commit to anything. His frequent need for daytime sleep means he cannot predict his availability. This would be problematic for any type of employment.

[14] I found the Claimant’s evidence credible. He appeared to be genuinely distressed and frustrated with his situation. He was proud of his work, and wanted to finish his career with X and retire with a full pension. This is consistent with statements he has made in the past and with assessments of his desire to recover.^{Footnote 7}

[15] As a result of his significant limitations, I find that the Claimant had been incapable regularly of pursuing a substantially gainful occupation since at least January 2018, when Dr. Nagpal prepared his medical report. He would not have had any realistic work capacity during that time. While many of his issues were cognitive in nature, physical labour would not have been the answer. In addition to being inconsistent with his personal characteristics, he also had a heart attack in 2010.^{Footnote 8} I must now determine when his severe disability actually started.

Did the Claimant’s severe disability start before January 2018?

[16] There is a lot of evidence confirming that the Claimant has been incapable regularly of pursuing a substantially gainful occupation since May 2015. For example, Dr. Carswell (Neuropsychology) noted in July 2015 that the Claimant’s cognitive deficits prevented a return to his old job, while his mood and severe psychological distress would need to be better managed before any return to work could be considered.^{Footnote 9} In December 2015, Karen Giannandrea (Speech Language Pathology) observed mild to moderate attention and concentration impairment, severe verbal memory impairment, moderate auditory comprehension and retention impairment, severe reading comprehension and retention impairment, and moderate executive function impairment. All of these had a significant effect on his daily functioning and participation in daily activities.^{Footnote 10}

[17] In October 2016, Dr. Vayalumkal reported ongoing cognitive-communicative challenges, adjustment difficulties, and significant fatigue. She said it was unlikely that a return to work plan would be successful at that time.^{Footnote 11} In October 2017, Dr. Sweet (Neuropsychology) said the Claimant’s condition had remained stable over the last year, with no improvements. He still had debilitating fatigue, very limited energy, frequent headaches that left him unable to function, low motivation, trouble processing information, inability to sustain attention, poor cognitive stamina, difficulty with crowds and noise, word-searching difficulties, and difficulty expressing himself. There had been little or no improvement since Dr. Carswell saw him in 2015.^{Footnote 12}

[18] While there are no objective documents for roughly one year after October 2016, I am satisfied that his disabling conditions did not improve during that time. Dr. Sweet mentioned in October 2017 that the Claimant’s condition had not changed over the past year. At the hearing, the Claimant said he was seeing his family doctor at least once every three months during that time. He also attended the rehabilitation clinic, where his treatment included successful chiropractic care that relieved his neck pain. He also had surgery for his sleep issues in both February 2017 and May 2017. Finally, Dr. Sweet said in October 2017 that the Claimant was continuing to see Dr. Sabourin (Psychologist) as needed.^{Footnote 13}

[19] Given his significant symptoms and the associated limitations, I find that the Claimant has actually been incapable regularly of pursuing a substantially gainful occupation since May 2015. Before considering whether his disability is also prolonged, however, I will consider some of the Minister’s submissions that may not be directly addressed by the above analysis.

Specific comments on the Minister’s submissions

[20] The Minister submitted that a finding of severity was precluded by Dr. Nagpal’s clinical notes from January 2018 to August 2018. In particular, the Minister observed that the Claimant’s depression was described as “stable”, the Claimant was considering volunteering, and Dr. Nagpal’s clinical notes focused on other issues such as diabetes and muscular strain.

[21] I do not find this evidence determinative. Although the Claimant’s depression was described as stable on March 5, 2018, this does not mean he was free from depressive symptoms. It just means they had not changed. In fact, Dr. Nagpal had recently stated that the Claimant’s depression had been worse since the injury.^{Footnote 14} Depression was also just one of several factors that combined to disable the Claimant. His symptoms and conditions included significant fatigue, lack of energy, headaches, poor concentration, and cognitive difficulties. Given the Claimant’s evidence at the hearing, any resolution of his depression in 2018 would have been temporary.

[22] When asked about volunteering, the Claimant said that he was never able to do this as he had no energy and could not commit to anything because of his unpredictable daytime sleep requirements. His desire to volunteer was likely indicative of a desire to get better, rather than of being able to resume gainful employment. Once again, his evidence at the hearing was certainly not supportive of any sustained work capacity or predictability.

[23] While Dr. Nagpal failed to mention much in the way of disabling symptoms in his 2018 clinical notes, I find it is equally consistent with his previous delegation of care to specialists and/or a recognition that the Claimant may have reached maximum medical recovery. To this day, he still takes anti-depression medication. He also testified that a number of specialists said they could do nothing further for him: he mentioned this for both occupational therapy and his mental health treatment. There are also documentary references to hitting a plateau in his symptom improvement.^{Footnote 15} Once again, stability is not equivalent to recovery.

[24] The Minister also pointed out that Dr. Sweet had referenced both a cognitive work hardening program and vocational rehabilitation, but there was no evidence that the Claimant had pursued these avenues. However, Dr. Sweet only saw the Claimant once, at the request of the Claimant’s insurer. More importantly, Dr. Sweet’s report was forwarded to Dr. Nagpal for his review and discussion with the Claimant.^{Footnote 16} It is notable that Dr. Nagpal appears to have discussed some “opportunities” with the Claimant on January 3, 2018, but made no specific mention of work hardening or vocational rehabilitation.^{Footnote 17} In fact, only five days later, Dr. Nagpal completed a CPP medical report and offered no hope of a transformative treatment or program.

[25] When asked about work hardening at the hearing, the Claimant said no work hardening program took place because he was not able to do it. I conclude that Dr. Nagpal likely did not support work hardening and/or vocational rehabilitation for the Claimant, or felt that their impact would not be significant. In either case, I consider it immaterial that the Claimant did not engage in either of those programs. It was reasonable to rely on his family doctor’s recommendations.

Did the Claimant also have a prolonged disability?

[26] A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death. As there is no suggestion that the Claimant’s disability is likely to result in death, I must determine whether it is likely to be long continued and of indefinite duration.

[27] Dr. Nagpal’s report from January 8, 2018, is the most recent medical prognosis. Dr. Nagpal thought the Claimant’s depression had worsened since the 2015 injury, gave a prognosis of “guarded”, and thought the likelihood of further improvement was poor. Dr. Nagpal said the Claimant had followed all recommended treatment, but had not improved.^{Footnote 18} Although commissioned by the Claimant’s insurer, Dr. Sweet’s October 2017 report came to a similar conclusion, noting that the Claimant had little or no improvement in his deficits since 2015. The prognosis was “very guarded” and it was impossible for Dr. Sweet to accurately predict the timeline for any further recovery.^{Footnote 19}

[28] Based largely on the opinions of Dr. Nagpal and Dr. Sweet, I find that the Claimant’s disability is likely to be long continued and of indefinite duration. There is no significant opinion to the contrary, even though various treatments and investigations have been proposed. Finally, while I place little weight on the Claimant’s prognostic statements, his complaints and self-reported limitations have been consistent for the past several years. Accordingly I find that the Claimant’s disability is prolonged, and likely has been since he suffered his concussion.

Conclusion

[29] The Claimant had a severe and prolonged disability in May 2015. However, a person cannot be deemed disabled more than 15 months before the pension application was received.^{Footnote 20} The application was received in January 2018, so the deemed date of disability is October 2016. Payments start four months after the deemed date of disability, as of February 2017.^{Footnote 21}

[30] The appeal is allowed.