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Decision
[1] The Claimant cannot receive a Canada Pension Plan (CPP) disability pension because he was not disabled before the end of December 2013. I explain my reasons below.
Overview
[2] The Claimant worked in construction his whole life. For many years, he worked seasonally for X. The Claimant’s various health problems started as early as 2008 when he broke his wrist. After attempts to return to work, he stopped working for X. Around 2011, he became self-employed. Eventually, he stopped doing all work.
[3] The Claimant applied for a disability pension in 2017, when he was 60 years old.
[4] The Minister decided that the Claimant didn’t qualify for a disability pension because his health didn’t regularly stop him from doing some type of work until after his qualifying period ended in December 2013.
[5] I agree with the Minister. The Claimant has not shown that he was regularly unable to do gainful work when his qualifying period ended in December 2013. As such, he does not meet the criteria to get a disability pension.
Was the Claimant disabled before the end of December 2013?
[6] To receive a disability pension, you have to prove that it is more likely than not that you had a severe and prolonged disability before your qualifying period ended.Footnote 1
[7] It is undisputed that the Claimant’s qualifying period ended on December 31, 2013.
[8] So, to qualify for a disability pension, the Claimant must prove that he has had a severe and prolonged disability since December 31, 2013, at the latest.
[9] To prove his disability was severe, he must show that it is more likely than not that he was regularly unable to work at any substantially gainful job because of the disability.
[10] In this decision, when I refer to gainful, I mean substantially gainful.
[11] To prove his disability is prolonged, he must show that it is likely to be long continued and has no definite end date, or is likely to result in death.
[12] There is no argument that the Claimant can no longer work because of his health. The issue is when he became unable to work because of his health.
[13] I must consider all of the Claimant’s health conditions and when he became unable to do gainful work because of those conditions, not just when he had to stop the physically demanding work at X.
The Claimant has various health conditions dating back to 2008, but they did not stop him from doing all gainful work until after 2013.
[14] The Claimant’s health problems started as early as 2008. However, given the unexplained gap in the medical evidence between 2010 and 2015, and the fact that the Claimant was doing some work during this period, I find that the Claimant has not shown that his disability regularly prevented him from doing gainful work before the end of December 2013.
[15] The Claimant says he has been unable to work since 2013 because of problems with his right wrist and both hands, pain in his shoulder and both feet, hearing loss and prostate cancer. He also says he has back pain.
[16] The Claimant broke his right wrist in 2008 and was off work for quite some time. He attended physiotherapy, and had injections in his wrist. His wrist never completely returned to normal. Because of overuse, he developed Dupuytren’s contracture in his left hand. There is evidence of this in a physiotherapy report dated July 13, 2009.
[17] The Claimant tried to return to work with X in 2009 and again in 2010, but was unable to do either his usual work, or the alternate work they offered. For example, he could not use the 12-pound sledgehammerFootnote 2, or do the lifting required for the alternate work. His earnings show that in 2010 he made less than half of what he had made in 2009. When work started in 2011, X did not recall him to work.Footnote 3
[18] In 2010, the Claimant’s family doctor reported on a Disability Tax Credit Certificate that the Claimant had vertigo, high blood pressure, depression, radioscaphoid (wrist) osteoarthritis with chronic pain, and Dupuytren’s contracture. She said the Claimant could walk for less than a city block because of dizziness, was unable to hold objects in either hand, and had decreased concentration.Footnote 4
[19] Having reviewed the Disability Tax Credit Certificate, I have decided to only consider the family doctor’s comments on the last page of the certificate, which are set out in the paragraph above. This page is completed in her handwriting, and is signed by her. There are no apparent changes to this page.
[20] I have decided not to consider the other pages because I am not at all confident that they have not been altered by someone other than the doctor. There are uninitialled changes on various pages of the document. For example, in the sections on walking and dressing, it appears that there was a check mark in the box that said that these sections did not apply, but that check mark was crossed out with an X, and there was a date inserted to show when the impairment started. Further, in the mental function section, there was a check mark in the section stating that the Claimant was markedly restricted in performing the mental functions necessary for everyday life, and had been since 2009, but this date looks like it has been altered. At the hearing, the Claimant was unable to provide me with any explanation for the apparent changes, and even confirmed that contrary to the form, he did not have problems dressing himself in 2008, and only recently has started to have problems getting in and out of the tub.
[21] I find that the Claimant did not see his family doctor between August 2010 and August 2015 because:
- the medical information on file does not show any visits to his family doctor, Dr. Lowry, between August 2010 and August 2015;
- Dr. Lowry confirmed that there were no records for this period;
- the CPP medical report completed by Dr. Lowry says that she has known the Claimant since 2010, and started to treat him in June 2010; and
- Dr. Lowry completed the CRA disability form for the Claimant in July 2010.
[22] The Claimant suggested that Dr. Lowry did not have any records for this period because that was before she became his family doctor. He could not explain why she would have said that she started treating him in 2010 on the CPP report. I do not think that the Claimant was intentionally trying to deceive me. I believe that he simply could not accurately recall the year that he started to see Dr. Lowry.
[23] Although I accept the Claimant’s testimony generally as truthful, I place no weight on the accuracy of any dates he provided because his evidence about dates was inconsistent throughout his testimony and with the documentary evidence on file.
[24] Since the Claimant testified that he did not visit another clinic, I find that the Claimant did not seek help from a family doctor between August 2010 and August 2015.
[25] Since 2015, the Claimant has been diagnosed and/or treated for various conditions. For example:
- In September 2015, Dr. Atiya (Plastic and Reconstructive surgeon) noted supraspinatus tendinosis and a flexion contraction that had rapidly progressed over the previous few months;
- He saw Dr. Collicutt (Orthopaedic surgeon) for right shoulder pain in August 2015;
- The Claimant had X-rays and other imaging in November 2015, and December 2016, because of extreme pain in his feet, mild joint arthropathy, left-side rib fractures, and right rotator cuff tendinopathy;
- He has had at least four surgeries since January 2016, including three on his hand and one on his shoulder;
- He had imaging in April 2016 for supraspinatus tendinosis;
- In May 2016 Dr. Yepes (Orthopaedic surgeon) said his shoulder pain started about a year earlier;
- He was diagnosed with prostate cancer in 2016; and
- In June 2017, Dr. Lozovaskis (Rheumatologist) reported that the Claimant’s foot pain had started about a year and a half earlier;
[26] I considered the Claimant’s argument that his conditions started in 2010 and prevented him from doing all types of gainful work by 2013. The Claimant testified that despite when he told his doctors his pain started, he had pain in his shoulder, feet and hands, many years earlier. I understand that it is sometimes difficult to recall when a particular symptom started when put on the spot in the doctor’s office.
[27] However, because the Claimant did not see his family doctor at all from August 2010 to August 2015, and there are no specialists reports around this time, he has not shown that his symptoms regularly stopped him from doing gainful work before his qualifying period ended.
[28] Since the Claimant only started seeking medical attention for his conditions in 2015, I find that it is more likely than not that it was not until around 2015 that the Claimant’s health regularly stopped him from doing gainful work.
The Claimant had capacity to work after December 2013.
[29] The Claimant stopped working at his usual job in 2010, but continued to be self-employed until at least 2014, which is after his qualifying period ended.
[30] The evidence as to when the Claimant stopped all work is not clear. For example:
- His record of earnings shows no earnings after 2010;
- On his questionnaire for benefits, the Claimant reported that he stopped working in November 2014;
- During a telephone conversation with the Minister’s agent, the Claimant said he hadn’t worked since 2010;
- In a second questionnaire the Claimant completed for the Minister, he said he worked from May 2011 to November 2011, and worked, on average 160 hours a month in 2011 and 2012;
- He received 28 weeks of regular employment insurance benefits from May 2011 to December 2011 (which is during the same period he reported he was working in the second questionnaire);
- Dr. Orrell, who completed an assessment for Workers’ Compensation Board, reported that the Claimant had not worked since 2015; and
- In April 2016, Dr. Shimon said the Claimant was a right-handed construction worker, which could mean that he was still working at that time.
[31] Despite the Claimant’s questionnaires and statements to the Minister’s agent, I find that the Claimant stopped working for X in 2010. This was the last time the Claimant had a T4 showing earnings, and I accept his testimony that he did not work for X, under the table, so to speak.
[32] I accept the Claimant’s statements that he was unable to continue to work for X in 2010 because he could no longer do the physically demanding work. The Claimant explained that X’s “light duties” meant working alone and lifting considerable weight. He said he could not physically continue to do such work. Although he had many problems before he stopped working for X, he had to grin and bear it.
[33] Since the Claimant reported on his first questionnaire that he was unable to work in November 2014, and the medical evidence shows that he did not start to see his family doctor and specialists until after November 2014, I find that it is more likely than not that he continued in his self-employment until at least November 2014.
[34] The Claimant said he did not personally complete the first questionnaire and did not recognize the handwriting. However, I find that by filing the first questionnaire with his application for benefits that he approved of the contents of the first questionnaire.
[35] Since there is evidence of work capacity, I must consider whether he tried to continue working but was unable to continue because of his health.
The Claimant has not shown that he was regularly unable to do gainful work because of his health conditions before the end of 2013.
[36] As stated above, I agree with the Claimant that he could not have continued to work at his usual, heavy construction job, because of the problems he was having with his hands, wrist and shoulder.
[37] However, I find that he has not shown that he could not have done lighter or more sedentary work before the end of 2013.
[38] The Claimant said that he could not have done any type of work that required sitting because his back pain kills him. Unfortunately, there is no medical evidence to support his statement that this was the case before the end of 2013. The 2010 report completed by the family doctor does not mention back pain, and there is no other medical evidence around 2013 that supports his statements. Therefore, I find that the Claimant has not proven that his back pain regularly prevented him from gainful work before the end of 2013.
[39] The Claimant’s evidence as to exactly what he did when he worked for himself is unclear. At first, he said he mowed grass with a push and did some odd jobs, and then he said he only mowed grass, and did some unpaid carpentry work for his family. There is a list of various businesses in the evidence provided by the Claimant, which could represent his clients, but the Claimant was unable to explain what the list meant. He said that the list was not in his handwriting.
[40] The Claimant said he worked every three days mowing grass, with a push mower, and had help from his sons. He said he had no capacity to work full-time, and only did what he needed to do to survive. He only worked as long as he could physically manage, usually about three or four hours every three days.
[41] Whether the Claimant mowed grass, or did carpentry work, these are both physically demanding jobs.
[42] Although the Claimant struggled with his lawn mowing business, both financially, and physically, he has not shown that he could not have done less physically demanding work. Given this capacity to work, and the gap in the medical evidence around the time of his qualifying period, I find that the Claimant has not shown that he was regularly incapable of pursuing gainful work before the end of 2013.
[43] The Claimant testified that the last five years were very rough. He explained that when he was working for himself he did not earn enough to make a living, and has used all of his life savings. Unfortunately, financial need is not enough to qualify him for a disability pension, and he has not shown that he could not have done lighter work.
[44] The Claimant was 57 years old when his qualifying period ended. He completed high school and obtained a carpentry certificate. He worked in carpentry his entire adult life. There is no evidence of any language or learning impediments. These factors would not have realistically stopped the Claimant from pursuing work in a competitive market.
The Claimant does not qualify for a post-retirement disability benefit.
[45] After the hearing, which was not attended by the Minister, the Minister filed submissions about the post-retirement disability benefit. The Minister said that the Claimant did not qualify for the post-retirement disability benefit.
[46] Although it was not apparent as to why the Minister filed these late submissions, since I had not discussed the post-retirement disability benefit with the Claimant at the hearing, I decided to accept the Minister’s submissions, so that the Claimant could review them, and provide a response if he wanted to. The Tribunal sent the Minister’s submissions to the Claimant and the Claimant was given an opportunity to send a response. The Claimant did not send a response.
[47] I agree with the Minister that the Claimant does not qualify for the post-retirement disability benefit because to qualify for that benefit, you have to have a qualifying period ending in January 2019, or later, and the Claimant’s qualifying period ended years too early, in December 2013.
Conclusion
[48] Since the Claimant has not shown that it is more likely than not that he was regularly unable to do some type of gainful work because of his health by the end of December 2013, he has not proven that he had a severe disability before his qualifying period ended. As such, he does not qualify for a disability pension.
[49] The appeal is dismissed.