Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not entitled to a longer period of retroactive benefits for her Canada Pension Plan (CPP) disability pension.

Overview

[2] The Claimant was involved in a car accident in November 2016. The Minister received her application for the disability pension on September 24, 2019. The Minister allowed the application effective October 1, 2018^{Footnote 1}, the maximum retroactivity allowable. The Claimant requested a reconsideration of the effective date of her disability.^{Footnote 2} The Minister maintained her decision. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

The Claimant has received the maximum period of retroactivity allowed

[3] The CPP sets out that a person cannot be deemed to have become disabled earlier than 15 months before the time of the making of any application.^{Footnote 3} The Claimant applied for a disability pension in September 2019. Fifteen months prior to this date is June 2018. The Claimant says that she was disabled because of a car accident in November 2016 and payments should being then. Unfortunately, this is not possible. A person can only be found to be disabled 15 months before the CPP disability application was received by the Minister. There is one exception related to “incapacity”, however for the reasons outlined below, the Claimant does not meet this exception. This means that the effective date of her CPP disability pension can be no earlier than June 2018 (which is 15 months before the application was received).

Payment of the disability pension begins four months after the effective date

[4] The CPP further sets out that when payment is approved for a benefit, the pension is payable for each month commencing with the fourth month following the month in which the applicant became disabled.^{Footnote 4} Four months after June 2018 is October 2018, which is when the Claimant started to receive the disability pension.^{Footnote 5}

[5] The Claimant’s disability benefit was calculated correctly based on her earnings and contributions.^{Footnote 6} Her contributor period is from December 1994 (the month after she turned 18 years old) until June 2018 (when she was deemed disabled).

What the “incapacity” exception means

[6] The “incapacity” exception allows for persons who lack the capacity to apply for benefits to have the date of their application backdated to a time when they became incapable of forming or expressing the intention to apply.^{Footnote 7} To satisfy the test for incapacity the Claimant must establish on the balance of probabilities that she lacked the capacity to form or express an intention to apply for the benefit.

[7] The capacity to form the intention to apply for benefits is similar in kind to the capacity to form an intention with respect to other choices in life. Capacity is to be considered in light of the ordinary meaning of the term and determined on the basis of the medical evidence and on the individual’s activities.^{Footnote 8}

[8] The wording is precise and focused and it does not require consideration of the capacity to make, prepare, process, or complete an application for disability benefits but only consideration of the capacity, quite simply, of forming or expressing an intention to make an application.

[9] I considered that it is necessary to look at both the medical evidence and “the relevant activities of the individual concerned between the claimed date of commencement of disability and the date of application which cast light on the capacity of the person concerned during that period of so “forming and expressing the intent”.^{Footnote 9} This approach was approved by the Federal Court of Appeal in Danielson^{Footnote 10} and Kirkland.^{Footnote 11} The approach is also consistent with the fact that “the capacity to form the intention to apply for benefits is not different in kind from the capacity to form an intention with respect to other choices which present themselves to an applicant. Nothing in the scheme requires us to give to the word “capacity” a meaning other than its ordinary meaning.^{Footnote 12}

[10] In this case, the period of potential incapacity to be considered is between November 2016 (when the Claimant states she was incapacitated due to a motor vehicle accident) and September 2019 (the date she applied for the disability benefit).

The Claimant did not lack the capacity to form or express an intention to apply for the disability benefit

[11] The Claimant’s position is that she was unable to express the intent to apply for disability benefits from November 2016 onward.

[12] She says that she was under a great deal of stress and focused on getting better after the accident. Also, she was not aware of the CPP disability benefit until she was advised to apply by a representative of Assured Income for the Severely Handicapped. Unfortunately, a lack of knowledge about entitlement to a disability pension does not fall within the scope of incapacity.^{Footnote 13}

[13] I am sympathetic to the Claimant’s situation, however the evidence shows that she had capacity of forming or expressing an intention to make an application. I say this for the following reasons.

Work efforts

[14] Based on the Claimant’s testimony and her work history, it is obvious that the Claimant has a strong work ethic. She testified that it is her desire to improve her condition and be able to return to work in the future. She should be commended for her efforts.

[15] However, the Claimant’s work efforts support that she had capacity to form or express and intention to make an application. This intention is not specific to an application alone, but to other choices in life as well. The Claimant applied for work at X in 2017 and worked there on a regular basis until early 2018. This job ended because of a personal conflict with the owner. She then made an application for Employment Insurance benefits. She believes these were sickness benefits. Whether they were regular benefits or sickness benefits is not important. What is important is that the Claimant had the capacity to apply for this benefit in about March 2018. This shows me that she would have had the capacity to apply for the CPP disability benefit as well.

[16] The Claimant then applied for a job at X. She said she needed to work for financial reasons. These decisions also show that the Claimant would have capacity to form the intention to apply for the disability benefit.

AISH benefit

[17] The Claimant worked until December 31, 2018. She then applied for Alberta Assured Income for the Severely Handicapped (AISH) on January 23, 2019.^{Footnote 14} She also signed a Consent to Deduction and Payment for payment to AISH on May 1, 2019.^{Footnote 15} The application for other benefits supports that the Claimant would have capacity to form or express the intention for the CPP disability benefit just as she did the AISH benefit.

Legal matters

[18] The Claimant retained a lawyer in July 2017.^{Footnote 16} She told me that her lawyer did not want her to accept the settlement. However, she wanted to get on with her life and she went against his advice. She said the lawsuit was settled in 2018. Making the decision to hire a lawyer, pursue legal action and decide how to resolve the legal action are all evidence that shows the Claimant had capacity to form and express the intention regarding legal matters.

Medical evidence

[19] The medical evidence supports that the Claimant suffered from physical and mental limitations after her car accident. There is no doubt she is disabled and this is why the Minister allowed the CPP disability benefit. The test before me is not whether the Claimant is disabled, but whether she had the capacity to form or express an intention to apply for the CPP disability benefit.

[20] In August 2017, a psychiatric report was completed by Dr. Ullah.^{Footnote 17} Since her car accident in November 2016, the Claimant had ongoing pain, which was effecting her mood causing depression and anxiety.

[21] The medical evidence shows that the Claimant was an active participant in her medical care. She made decisions regarding the use of medication and treatments. The Claimant told her family doctor in 2017 that she did not want anti-depressant medication. She preferred natural healing. The Claimant attended physiotherapy and massage therapy. Dr. Ullah said that the Claimant was “keen to continue psychotherapy on ongoing basis”.^{Footnote 18}

[22] The Claimant met with Dr. Gross in August 2017. She told him that she would like to be guided into return to a work environment that she could complete. She also asked for occupation therapy with regard to a seatbelt strap that would be more comfortable.^{Footnote 19}

[23] The capacity to form the intention to apply for benefits is not different in kind from the capacity to form an intention with respect to other choices, which present themselves to an applicant. The Claimant’s active participation in the decision making of her medical treatments shows me that she had capacity.

Conclusion

[24] While I am sympathetic to the Claimant’s situation, including her financial hardship, I am bound by the CPP legislation. The Claimant received the maximum 15-month retroactivity. Also, I find that the Claimant has not demonstrated incapacity within the meaning of the CPP as she has made regular and ongoing decisions regarding her every day life, legal matters, employment matters and her health care. For these reasons, the appeal is dismissed.