Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is entitled to a Canada Pension Plan (CPP) disability pension with payment starting as of September 2016.

Overview

[2] The Claimant was 27 years old when he applied for a CPP disability pension in November 2016. He worked as a carpenter. In May 2016, another player assaulted him during a recreational hockey game. The other player struck him in the face with a hockey stick. This shattered most of the bones in his face. The Claimant has not worked since. In his disability questionnaire, the Claimant stated that he had been unable to work since May 2016 because of post-traumatic stress, severe depression, and severe anxiety resulting from his facial injuries. He also stated that he had other impairing conditions including disturbed sleep, facial nerve damage, and bulging back discs.^{Footnote 1}

[3] The Minister denied the application initially and upon reconsideration, and the Claimant appealed to the Social Security Tribunal. In January 2019, the General Division dismissed the appeal. The Claimant appealed to the Appeal Division. In September 2019, the Appeal Division allowed the appeal and sent this matter back to the General Division for a new hearing.

[4] For the purposes of the CPP, a disability is a physical or mental impairment that is severe and prolonged.^{Footnote 2} The Claimant’s disability is severe if it causes him to be incapable regularly of pursuing any substantially gainful occupation. His disability is prolonged if it is likely to be long continued and of indefinite duration.

[5] For the Claimant to succeed, he must prove that it is more likely than not that he became disabled by the end of his Minimum Qualifying Period (MQP), and continues to be disabled.^{Footnote 3} His MQP – the date by which he has to prove he was disabled – is December 31, 2018. This date is the last date when he had valid contributions to the CPP in four out the last six years.^{Footnote 4}

Issues

1. Did the Claimant’s medical conditions result in his being incapable regularly of pursuing any substantially gainful employment by December 31, 2018?
2. If so, is his disability long continued and of indefinite duration?

Analysis

[6] At the opening of the hearing, Mr. Swart, the Claimant’s representative, submitted that the Claimant’s most significant disabling conditions are multiple facial fractures, chronic low back and facial pain, and psychological issues. Although the Claimant has undergone extensive treatment including medications, counselling, physiotherapy, and numerous specialist referrals, he continues to be unable to work. The reports and clinical records from Dr. Csanadi, the Claimant’s family doctor, and from Dr. Santher, his treating psychiatrist, confirm that he is unable to return to work in any capacity.

[7] Mr. Gebera, the Minister’s representative, submitted that the Claimant was only 27 years old when he applied for CPP disability. He has a good education and transferable skills. Mr. Gebera acknowledged that the Claimant has limitations and that he may not be able to return to work as a carpenter. However, the Minister’s position is that the Claimant has the capacity to pursue alternative work, and that he has failed to make reasonable efforts to do so.

Severe disability

The Claimant’s medical conditions interfered with his ability to work as of December 31, 2018

[8] I must assess the Claimant’s condition as a whole and consider all the impairments that affected his employability, not just his biggest impairments or her main impairment.^{Footnote 5}

Oral evidence

[9] The Claimant testified that he was the victim of an unprovoked assault while playing in a recreational hockey game. Another player suddenly struck him in the face with a hockey stick. He slid into the boards and the next thing he remembers is waking up in the hospital. He underwent a complex eight-hour reconstructive surgery.

[10] His continuing issues following the surgery include:

• Severe damage to left side of his face: The left side is always numb; he has constant pain in the nose area; his eyes are always puffy; and he can’t breathe from the left side of his nose.
• Headaches: He has “very” bad headaches almost every day; the pain is unbearable and he has to usually go into a dark room and lie down for at least an hour.
• Teeth pain: He has constant pain in his teeth. His dentist has told him that the pain may be permanent because of the nerve damage.^{Footnote 6}
• Scaring: He has a permanent scar in the centre of his face. He always feels angry and upset when he looks in the mirror. He is very self-conscious about the scar. As a result, he is reluctant to go places and be with people.
• Racing mind: He is always thinking about the attack. As a result, he is not able to focus.
• Back pain: Although he had back pain before the assault, his back became worse after it. His back pain is more severe and constant.^{Footnote 7}
• Sleep disturbance: His sleep is always interrupted. He is never able to sleep through the night.

[11] The Claimant testified about the treatments he has pursued. He takes medications for depression, anxiety, pain, headaches, inflammation, and nerve pain. These provide little relief, but his condition would be worse if he didn’t take them. The medications make him groggy. He has gone for numerous group therapy sessions. He last went for group therapy with Dr. Santher in May 2019. He attempted to book another appointment with Dr. Santher, but hasn’t been able to do so.  He believes that Dr. Santher is about to retire. He is on the waiting list to see a psychologist. He saw Dr. Khadim, a pain specialist, in January 2019.^{Footnote 8} Dr. Khadim wanted to do nerve blocks, which would have involved putting needles in his face and back. He didn’t go back to see Dr. Kadhim because he did not want to go through the pain from the needles. His family doctor has not recommended another pain clinic. Although some his doctors were initially optimistic, none has ever cleared him to return to work.

[12] V. T., the Claimant’s spouse, testified about her observations of the Claimant. She stated that he doesn’t sleep well. He tosses and turns all night. He doesn’t wake up at the same time every day. He isn’t in a good mood when he wakes up – he is very irritable, frustrated, and angry. He has difficulty breathing from the left side – he usually breathes out of his mouth. He has difficulty focusing, reading emails, and keeping track of his credit card statements. He can’t focus on his activities of daily living. He is always focused on how bad he is feeling. He is always emotional. He is very insecure and uncomfortable with himself. As a result, he doesn’t want to do anything or be around people. He is afraid to go out in public.

[13] V. T. stated that the Claimant could not be a dependable worker. He tries to contribute around the house but can’t be consistent, because he is always on an “emotional roller coaster.” He sometimes sleeps away the entire day. V. T. tries to go to most of his medical appointments because he doesn’t retain information.

Medical Evidence

[14] At the time of the assault, Dr. Henry was the Claimant’s family doctor. In his October 2016 CPP medical report, he diagnosed lumbar spine disc degeneration, chronic back pain,  facial injury, and post-traumatic stress disorder. He stated that the prognosis for the Claimant’s recovery from post-traumatic stress was good, that he should recover from his facial injury, and that his back pain was chronic and recurring.^{Footnote 9} Sadly, this prognosis was overly optimistic.

[15] The most significant medical evidence is from Dr. Csanadi and Dr. Santher. Both of these doctors have repeatedly stated the Claimant is unable to return to work, in any capacity.

Dr. Csanadi

[16] Dr. Csanadi has been the Claimant’s family doctor since January 2017. He has seen the Claimant on a frequent and regular basis. He has also had the primary responsibility for managing the Claimant’s care, including prescribing his medications, referring him for treatments, and referring him to specialists. He has also completed medical forms for applications other than for CPP benefits. These have included his application for Ontario Disability Support benefits and to Criminal Injury Compensation Board.

[17] I am setting out below the most significant excerpts from Dr. Csanadi’s clinical notes and reports:

• January 17, 2017: not gainfully employable on a permanent chronic basis.^{Footnote 10}
• October 26, 2017: referral to Dr. Santher.^{Footnote 11}
• Nov 28, 2017: referral to Dr. Stein, orthopaedic surgeon. L4-5 disc degeneration and spinal stenosis since 2014.^{Footnote 12}
• September 4, 2018: referrals to Fort Erie Canadian Mental Health Association and to chronic pain clinic.^{Footnote 13} Pain in central face, head, right rear hip, sacroiliac (lower back joints), and right buttock. Anhedonia (inability to feel pleasure) and low mood – nearly every day. Sleep problems, appetite problems, difficulty concentrating - more than half of days. Fatigue – several days. Guilt – nearly every day. Ability to function – extremely difficult. Moderately severe major depression.^{Footnote 14}
• December 18, 2018: referral to physiotherapy for chronic pain.^{Footnote 15}
• July 9, 2019: Pain every day in front and back of head, both ears, centre of face, low and mid back, and right buttock. Anhedonia, low mood, sleep problems, fatigue, appetite problems, guilt, difficulty concentrating, and psychomotor changes – nearly every day. Thoughts of being ‘better off dead’ or hurting self – several days. Ability to function – ‘extremely difficult’. Severe major depression.^{Footnote 16}
• December 17, 2019: Multiple injuries include headaches; traumatic stress disorder, anxiety and depression; chronic pain syndrome; and mechanical lumbar pain. Are severe, widespread, ongoing, refractory, and “totally disabling.” Not gainfully employable. Maximum rehabilitation potential already reached.^{Footnote 17}

Dr. Santher

[18] Dr. Santher saw the Claimant from October 2016 to May 2019. He led both  individual therapy and group therapy sessions that the Claimant attended. Throughout, Dr. Santher stated that the Claimant was unable to return to work.

[19] In October 2016, Dr. Santher diagnosed post-traumatic stress disorder and chronic pain. He stated that the Claimant was not fit to return to work at that time. He also urged the Claimant to visualize going back to work at the earliest possible date. The Minister relies on this statement to support its position that the Claimant was able to return to work. However, I agree with Mr. Swart that this was an expression of hope, and not a statement of reality.

[20] Dr. Santher’s clinical notes and reports confirm that the Claimant continued to be unable to work. I am setting out below the most significant excerpts from those clinical notes and reports:

• November 7, 2016: unfit to be employed in any job.^{Footnote 18}
• December 13, 2016: likes working but can’t.^{Footnote 19}
• February 17, 2017: not fit to be employed indefinitely.^{Footnote 20}
• May 30, 2017: not fit to work.^{Footnote 21}
• July 10, 2017: not fit to work.^{Footnote 22}
• September 5, 2017: Applied for ODSP. Not happy that not working. Not fit to work indefinitely.^{Footnote 23}
• October 31, 2017: Approved for ODSP. Not fit to work.^{Footnote 24}
• May 14, 2018: Therapy report for Criminal Injuries Compensation Board. Has been unfit to work.^{Footnote 25}
• December 14, 2018: Headaches, bad anxiety, depressed. Can’t focus. Depressed, tearful, anxious, feeling hopeless, pre-occupied with trauma.^{Footnote 26}
• January 22, 2019: Always depressed, angry, hopeless, irritable; can’t sleep, stays in bed; headaches; can’t get past trauma; multiple complaints about his symptoms and inability to work.^{Footnote 27}
• February 19, 2020: Attended group therapy sessions from February to May, 2019. He participated well in the sessions, but continued to struggle with pain, depression, and anxiety.^{Footnote 28}

My Findings

[21] Considering the combined effect of the Claimant’s physical and psychological conditions, I find that his medical conditions interfered with his ability to work by the end of December 2018.

The Claimant has established a severe disability

[22] A disability is severe if it renders a claimant incapable of pursuing with consistent frequency any truly remunerative occupation. I must assesses the severity requirement in a “real world context” and consider such factors as the Claimant’s age, education level, language proficiency, and past work and life experiences when determining his "employability".^{Footnote 29}

[23] The Claimant was only 30 years old in December 2018. He has a good education and significant transferable skills. He is proficient in English and there is no suggestion of any leaning disability. These positive factors would support a finding that he has the capacity to pursue alternative less physical employment.

[24] However, despite these positive factors, the medical evidence from the Claimant’s family doctor and psychiatrist establish that he that he lacked residual work capacity by December 31, 2018. In addition, the oral evidence from the Claimant and his wife was credible. It was consistent with and supported by the extensive medical evidence.

[25] The Claimant suffers from multiple disabling conditions. These include long-standing chronic back and facial pain, headaches, sleep disturbance, post-traumatic stress disorder, depression, and anxiety. He has difficulty focusing, reading, and even keeping track of simple things such as his credit card statements. He is unable to consistently do work around the house. On occasion, he sleeps for the entire day. Despite his youth and positive personal characteristics, he could not be a regular and reliable employee.

[26] I am satisfied that the Claimant lacks the regular capacity to pursue any form of substantially gainful employment. In view of this, he is not obligated to make efforts to pursue alternative employment.

[27] I find that the Claimant has established that it is more likely than not that he suffers from a severe disability in accordance with the CPP requirements.

Prolonged Disability

[28] The Claimant’s multiple disabling conditions have persisted for many years. Despite extensive and ongoing treatment, there has been little or no improvement.

[29] The Claimant’s disability is long continued and there is no reasonable prospect of improvement in the foreseeable future.

[30] I therefore find that his disability is prolonged.

Conclusion

[31] I find that the Claimant had a severe and prolonged disability in May 2016, when he was assaulted. Payments start four months after the date of disability,^{Footnote 30} as of September 2016.

[32] The appeal is allowed.