Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] I allow the appeal. The General Division made an error of fact. I will give the decision that the General Division should have given. The Claimant is entitled to a disability pension under the Canada Pension Plan (CPP).

Overview

[2] A. P. (Claimant) has a history of arthritis, obsessive-compulsive disorder (OCD), and chest pain. The Claimant worked as a telemarketer until April 2010, when her employer eliminated her job. She received regular Employment Insurance (EI) benefits until January 2011, when doctors diagnosed breast cancer. After her diagnosis, she received EI sick benefits. She had a lumpectomy, three cycles of chemotherapy, and radiation. Her cancer treatment was complete by August 2011.

[3] The Claimant applied for a disability pension under the CPP in 2011. The Minister denied the application in January 2012. The Claimant did not appeal.

[4] The Claimant applied for a disability pension again on October 26, 2016. The Minister denied the application initially and on reconsideration. The Claimant appealed to this Tribunal. The General Division dismissed her appeal on December 31, 2018. The General Division decided that the Claimant did not prove that her disability was severe and prolonged on or before the end of her minimum qualifying period (MQP). The Claimant’s MQP ended on December 31, 2012. I gave the Claimant permission (leave) to appeal the General Division decision. I found that there was an arguable case that the General Division made an error of fact about the Claimant’s capacity to work.

[5] I must decide whether it is more likely than not that the General Division made an error under the Department of Employment and Social Development Act (DESDA). If I find an error, I must decide how to fix (remedy) that error.

[6] In my view, the General Division made an error of fact in relation to Dr. Nikore’s evidence. This led the General Division to conclude, in error, that the Claimant had capacity for work. I have the record I need to give the decision that the General Division should have given: the Claimant is entitled to a disability pension under the CPP.   

Preliminary matters

[7] The Claimant provided new evidence to the Appeal Division.

[8] The Appeal Division does not consider new evidence. There are some exceptions to that rule, but none of them applies here.^{Footnote 1}

[9] I will not consider the new evidence the Claimant provided.

Issue

[10] Did the General Division make an error of fact by deciding that the Claimant had the same capacity for work at the end of the MQP that she had before her employer eliminated her job?

Analysis

Appeal Division review of General Division decisions

[11] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to decide whether there is an error. That review is based on the wording of the DESDA, which sets out the basis for appeals to the Appeal Division (also called “grounds of appeal”).^{Footnote 2}

[12] The DESDA says an error of fact happens 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.”^{Footnote 3}

[13] This means that for the Appeal Division to find an error of fact, the fact needs to be both important and incorrect. The General Division needs to have found the fact in a way that: willfully goes against the evidence, is not guided by steady judgment, or ignores the evidence.^{Footnote 4}

Did the General Division make an error of fact?

[14] The General Division made an error of fact. The General Division decided that the Claimant had the same capacity for work at the end of her MQP as she did when the employer eliminated her job. In reaching that conclusion, the General Division misconstrued the evidence from Dr. Nikore, who reported specifically on the Claimant’s functionality after the employer eliminated the Claimant’s job, at the point when she received a cancer diagnosis (and before the end of the minimum qualifying period). Dr. Nikore’s report was important and the General Division misconstrued that evidence, which led to an error of fact.

[15] The Claimant’s family doctor, Dr. Nikore, stated in 2017 that, “since [the Claimant’s] diagnosis of breast cancer she has has (sic) difficulty with her copying (sic) skills and flare up of her OCD. She has not been able to work due to lack of concentration, obsessive thoughts, anxiety, fatigue, generalized aches and pains and headaches.”^{Footnote 5}

[16] The Claimant argues that the General Division made an error of fact. The General Division did not consider the evidence about the negative impact that the cancer treatment had on the Claimant’s ability to work at the end of the MQP.^{Footnote 6} The Claimant gave testimony about her limitations after the cancer treatment, and this testimony was supported by the medical letter from Dr. Nikore in August 2017. The Claimant was not able to work after the cancer. Her conditions (in terms of obsessive-compulsive disorder as well as her coping and pain) meant that she could no longer work.

[17] The Claimant argues that the General Division member either ignored or did not properly consider Dr. Nikore’s evidence when deciding that the Claimant’s functional limitations were the same at the end of her MQP as it was back when her job was eliminated. 

[18] The Minister argues that the General Division did not make an error.^{Footnote 7} In her testimony, the Claimant said that if her job had not downsized, she would have been able to continue working. The Minister argues that the General Division did not ignore Dr. Nikore’s report. The General Division just weighed that report against the testimony of the Claimant, and decided to give more weight to the Claimant’s own testimony. Weighing evidence and reaching conclusions is the General Division’s job.

[19] The Minister also argues that Dr. Nikore’s report was of a general nature, and provided no means of measurement of the Claimant’s condition at the time of the MQP. The issue then is not that the General Division dismissed the report because the doctor wrote it after the MQP, but because it was too general. The Minister argues that the report does not describe the Claimant’s decline specifically enough to be helpful.

[20] In my view, the General Division made an error of fact. Dr. Nikore’s report was important for several reasons.

[21] First, it explained specifically what the Claimant’s many functional limitations were (flare up of OCD, difficulty coping, lack of concentration, obsessive thoughts, anxiety, fatigue, generalized aches and pains and headaches).

[22] Second, it grounded the experience of those functional limitations in time (since the diagnosis of breast cancer).  The diagnosis was after the employer eliminated the job but before the end of the MQP.

[23] Third, the report corroborated the Claimant’s testimony about the impact of her breast cancer treatment on her functional limitations.  

[24] Fourth, the report specifically linked those limitations to an observation that the Claimant had not been able to work.

[25] The General Division described Dr. Nikore’s report in its decision.^{Footnote 8} However, the General Division seems (in part) to have dismissed the report because Dr. Nikore wrote it long after the MQP: “her reports (sic) well past the December 31, 2012 and are of little assistance in my consideration of her employment capacity at that time.” There is no requirement that physicians write medical reports at the time of the MQP. A medical report after the MQP that addresses the period of the MQP, should not be dismissed out of hand.^{Footnote 9}

[26] The General Division also stated that although Dr. Nikore’s 2011 Medical Report stated that the Claimant’s prognosis was “guarded”, the Claimant testified that if her employer had not eliminated her job, she would have been able to continue working. The General Division stated, “I conclude that the subjective evidence provided by the Claimant is not sufficiently compelling to overcome the lack of objective medical evidence as of her MQP.”^{Footnote 10}

[27] In my view, the General Division made an error of fact. The General Division decided that the Claimant did not prove that her disability was severe before the end of the MQP. This is the key finding in the decision. I am satisfied that the General Division reached that conclusion without considering what Dr. Nikore’s report actually said.

[28] To find that the report was of little assistance is perverse or capricious or ignores its actual content. The report was provided by a family physician who treatment the Claimant for many years and spoke directly to the Claimant’s condition after the employer eliminated the job, but before the end of the MQP. It is perverse to conclude that the Claimant’s condition did not change from the time her job was eliminated (before the cancer) to the end of her MQP (after the cancer treatment) given what Dr. Nikore’s report says about the Claimant’s condition beginning with her cancer diagnosis.

Remedy

[29] Once I have found an error by the General Division, I can return the case to the General Division for reconsideration, or I can give the decision that the General Division should have given.^{Footnote 11} At the Appeal Division hearing, the Claimant argued that if I found an error, I could give the decision that the General Division should have given. The Claimant also noted that if I felt that the record was incomplete in terms of the Claimant’s personal circumstances, I might choose to return the matter to the General Division for reconsideration.

[30] The Minister requested that if I find that the General Division made an error, I give the decision that the General Division should have given. The Minister takes the position that the outcome should be the same: the Claimant is not entitled to the disability pension. The Minister relied on all of its

[31] Although the Claimant may well have provided more detailed information about the Claimant’s personal circumstances if the matter was returned to the General Division, I am satisfied that the record in this case is complete. I will give the decision that the General Division should have given. This is the most fair and efficient way forward.^{Footnote 12}

[32] I have considered the medical evidence, the Claimant’s testimony, and the evidence about her personal circumstances. I have considered the Claimant’s efforts to manage her conditions. In my view, the Clamant proved she had a severe and prolonged disability within the meaning of the CPP by August 2011 (before the end of the MQP on December 31, 2012). She has taken steps to manage her condition and has not refused treatment.

Proving a disability is “Severe”

[33] A person is entitled to a disability pension when they can show that they had a severe and prolonged disability on or before the end of the MQP. The Minister calculates the MQP based on the person’s contributions to the Canada Pension Plan. A person’s disability is severe if it makes them incapable regularly of pursuing any substantially gainful occupation.^{Footnote 13}

[34] To decide if a disability is severe, the correct approach is to assess the Claimant’s condition in its totality, which means considering all the possible impairments, not just the biggest impairments or the main impairment.^{Footnote 14}

The Claimant’s personal circumstances are a barrier to employment

[35] When deciding whether a disability is severe, I must consider both the Claimant’s personal circumstances and her medical conditions.^{Footnote 15} I must take a “real world” approach to considering the severity of the Claimant’s disability and his employability. That means that I must consider the Claimant’s personal circumstances, including her age, education level, language skills, and her past work and life experience.^{Footnote 16}

[36] The Claimant was 56 years old at the time of her MQP. She was several years from the earliest age for early retirement under the Canada Pension Plan. She has only a grade 9 education. She testified that she grew up on a reserve,^{Footnote 17} and about the fact that she started school on the reserve later than other children did. She gave evidence about the impact of the OCD on her learning. She stated that her checking and counting behaviours were distracting when she was trying to learn. She testified that she left school. She tried several times to go back without success because she needed too much help.

[37] She has few if any transferrable skills: she is not computer literate and has had no special job training. She communicates well in English. Her work experience includes dishwashing and some prep work in a kitchen, babysitting in her home, and the work telemarketing she was doing (that did not involve the use of a computer).

[38] I am satisfied that the Claimant’s age, education and work and life experience means that she would experience significant barriers to employment or even retraining.  Her personal circumstances, in combination with the evidence about her functional limitations, leads me to conclude that the Claimant’s disability was severe in August 2011 and following.

The Claimant’s functional limitations mean that her disability is severe

[39] I find that the Claimant’s disability became severe after she completed treatment for breast cancer in August 2011. At that point, her lack of concentration, obsessive thoughts, anxiety, fatigue, generalized pain and headaches meant that she was incapable regularly of pursuing any substantially gainful occupation.^{Footnote 18}

[40] I accept, as the General Division discussed an analyzed, that prior to the cancer treatment, the Claimant was working despite her multiple diagnoses including OCD, arthritis, diabetes, hyperlipidemia, and hypertension.

[41] The Claimant managed her diabetes with medication, although her blood sugar was elevated in March 2011. The Claimant’s hypertension and hyperlipidemia were also managed with medication and I am satisfied that there were no functional limitations linked to that condition before the end of the MQP.

[42] I am satisfied that the Claimant’s arthritis resulted in pain in her knees, back and shoulder. While some Claimants may have more detailed objective findings about their arthritis, the Claimant’s bone scan^{Footnote 19} did show mild degenerative changes in her spine at L3-4 and L4-5. The sacroiliac joint had mild patchy degenerative changes. There were also moderate osteoarthritic changes in both knees, both ankles, and the mid-tarsal regions of both feet. The shoulders had mild degenerative changes on the right side.

[43] That bone scan, in addition to Dr. Nikore’s diagnosis and prognosis is sufficient medical evidence for me to conclude that the Claimant experiences pain in these areas. The functional limitations linked with this condition would not be enough on their own to find a severe disability. However, when combined with some of the other functional limitations associated with the Claimant’s OCD after her cancer treatment, it becomes clear that the Claimant’s disability was severe.

a) Medical evidence about functional limitations

[44] Dr. Nikore’s supporting letter dated August 15, 2017 provided more information. In the letter, Dr. Nikore stated that the Claimant had difficulty with her “copying” skills, and a flare up of her OCD. I take “copying” to be a typo for “coping.” Dr. Nikore stated clearly that the Claimant “has not been able to work due to lack of concentration, obsessive thoughts, anxiety, fatigue, generalized aches and pains and headaches.”^{Footnote 20}

[45] I put great weight on Dr. Nikore’s report. I am satisfied that it shows that although the Claimant has struggled with pain and with OCD behaviours at work before the cancer, after cancer the Claimant’s coping was lower. She experienced a flare up of her OCD, and she could no longer work as a result of this combination of limitations: lack of concentration, obsessive thoughts, anxiety, fatigue, generalized aches and pains, and headaches. Dr. Nikore clearly describes a difference in the limitations and the ability to cope with them and grounds that opinion in time – the change occurred with the cancer diagnosis. Dr. Nikore specifically links the limitations to an observation that the Claimant was not able to work. There is no mention of a concern that the Claimant could or should be doing anything that would improve her functional limitations, or that they were expected to improve with time.  

[46] Dr. Nikore’s evidence was not contradicted by the Claimant’s testimony, which was also consistent with the notion that her functional limitations were worse after cancer.

b) Claimant’s testimony about her functional limitations

[47] The Claimant gave evidence about the difficulties she was having in her job, particularly in relation to pain in her knees and back when getting out of her chair, and concentration and fatigue. She was checking and rechecking her work but tried to hide some of those behaviours from her co-workers. I accept that she was struggling because of her functional limitations, but that she was working until her employer eliminated her job.

[48] However, I also accept the Claimant’s evidence about the impact of her cancer treatment on her ability to work. After her treatment, she was no longer able to work due to functional limitations including lack of concentration, obsessive thoughts, anxiety, fatigue, generalized aches and pains and headaches.

[49] In response to a question from the General Division member, the Claimant testified that if her employer had not eliminated her job, she would have been able to continue working as a telemarketer. I assign little weight to the answer to this question. Presented with a hypothetical, the Claimant agreed that if the employer had not eliminated her job, she would have continued working. She said she liked the people there. However, she also gave evidence about the challenges she was experiencing in that job. She said that she was late due to her OCD, she was rechecking her work and lacked concentration, and she had pain in her knees and low back from sitting and then getting up to add information to a board.^{Footnote 21}

[50] It is not clear to me whether the General Division member was asking the Claimant if she would have continued working even after her cancer diagnosis, or whether he just meant would she have continued working up until she got cancer. It is not clear if cancer was part of the General Division member’s hypothetical situation at all. I take the Claimant’s answer to mean that she would not have quit the job before she got cancer, but I cannot infer that her answer  meant that she would have continued to work even after the cancer treatment, given the testimony she gave about the severe impact of her cancer treatments on her functional limitations.

[51] The Claimant testified^{Footnote 22} that after she finished chemotherapy and radiation, her doctor told her that she would need time to recover. The Claimant understands that some people do not every fully recover from these treatments. The Claimant considers herself one of those people. She no longer slept well; she said she had trouble figuring things out (like making change at a yard sale). She testified that her arthritis pain was worse, including pain in her hands and wrists. She could no longer do the sewing or gardening that she used to do. She has to pace herself to complete tasks like standing to do the dishes.

[52] The Claimant testified that her physician increased her OCD medication to the maximum but that it got worse after her cancer treatment. She testified that her doctor offered different medication, but that she refused because she did not want anything addictive. After her treatment, she had trouble remembering and concentration, she slept on the sofa during the day, and her mind would race like a train at full speed with no breaks. The Claimant explained that although before her cancer treatment she would forget things, after it was worse and she was more obsessed and doing more counting, watching and checking. Her husband stepped up and took over housework.

[53] The Claimant’s testimony about the impact of the cancer treatment on her was compelling. It was consistent with information she gave in her Questionnaire for disability benefits about how much her concentrating and remembering varies after “chemo.”^{Footnote 23}

Reasonable steps to manage condition and did not refuse treatment

[54] The Claimant took reasonable steps to manage her condition and she did not refuse treatment.

[55] Claimants must show that they have taken reasonable steps to manage their medical conditions.^{Footnote 24} If claimants refuse treatment unreasonably, they may not be entitled to the disability pension (and the impact of the refused treatment is relevant in that analysis).^{Footnote 25}

[56] I am satisfied that the record shows the Claimant has participated in treatment for her conditions. She is connected with a family doctor. She takes her prescribed medications. She underwent lots of difficult treatment for her cancer. She has refused medications when they have caused side effects that were not tolerable, and her physician has not flagged any concern with the Claimant’s participation in her health care. The Claimant says that she has also refused medications like Percocet due to concerns about becoming addicted. To the extent that this could be a refusal of treatment, I am satisfied that it is a reasonable one based on a legitimate concern for health and well-being. She has also requested referrals to a chiropractor and a specialist.^{Footnote 26}

The disability is prolonged

[57] The Claimant’s disability is likely to be long-continued and of indefinite duration. This means it is prolonged within the meaning of the CPP.^{Footnote 27}

[58] In the medical report that the Claimant’s doctor completed, the prognosis is “guarded.”^{Footnote 28} Claimant testified that since 2012, she has not improved. Dr. Nikore acknowledged the Claimant’s limitations and how severe they became after cancer. Dr. Nikore referenced the fact that the Claimant has not worked since her cancer without any statement that she is expected to improve and could sometime return to work.

[59] The Claimant had to show that it was more likely than not that she had a severe and prolonged disability within the meaning of the Canada Pension Plan during her minimum qualifying period (MQP) which ended on December 31, 2012.

[60] I find that the Claimant has proven her disability was severe and prolonged by December 31, 2012 when her MQP ended. In 2010, her company downsized and eliminated her job. She was able to work at that point but she did not find work. She got a cancer diagnosis. By August 2011 she had completed some treatment for cancer and her functional limitations were getting worse. From August 2011 and following, in light of her testimony and medical reports and her personal circumstances, I find that her disability was severe. 

[61] For the purpose of payment, the Claimant cannot be considered disabled more than 15 months before she applied.^{Footnote 29} In this case, the Claimant applied for the disability pension on October 26, 2016. Therefore, for the purpose of payment, she cannot be considered disabled before July 1, 2015. Payments start four months after the disability began,^{Footnote 30} which means payments start November 2015.

Conclusion

[62] I allow the appeal. The General Division made an error. I give the decision that the General Division should have given: the Claimant is entitled to a disability pension under the CPP. Payments start effective November 2015.