Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed.

[2] The General Division based its decision on an important factual error.

[3] The decision that the General Division should have given in made: The Claimant is disabled. Payment of the disability pension will begin in November 2016.

Overview

[4] M. S. (Claimant) finished Grade 12 in India. She moved to Canada and worked as a sewer, then a packager. In 2013, she was injured in a car accident. She applied for a Canada Pension Plan disability pension and claimed that she was disabled by the physical injuries and mental health illness that resulted from the accident.

[5] The Minister of Employment and Social Development refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal. It decided that although the Claimant has limitations she retained some capacity to work and failed to demonstrate that she could not obtain or maintain work because of her health.                 

[6] Leave to appeal this decision to the Tribunal’s Appeal Division was granted because the appeal had a reasonable chance of success because the General Division may have based its decision on an important factual error. I have now considered the General Division decision, all of the documents filed with the Appeal Division and the parties’ oral arguments. The appeal is allowed. The General Division based its decision that the Claimant’s disability was not severe on an important factual error. The decision that the General Division should have given is made: The Claimant is disabled. Payment of the disability pension begins in November 2016.

Issues

[7] Did the General Division base its decision that the Claimant’s disability was not severe on at least one of the following important factual errors:

1. It failed to consider the psychiatrist’s opinion that the Claimant would not be able to retrain for any type of job;
2. It failed to consider the family doctor’s notes that stated that the Claimant would not likely be able to re-enter the workforce;
3. It failed to consider the impact of taking medication on her capacity to work or retrain;
4. It failed to consider that the Claimant made only minimal improvement with treatment; or
5. It failed to consider the totality of the evidence;

[8] Did the General Division make an error in law when it failed to refer to evidence that did not support the conclusion it reached in its decision?

Analysis

[9] An appeal to the Tribunal’s Appeal Division is not a re-hearing of the original claim. Instead, the Appeal Division can only decide whether the General Division:

1. failed to provide a fair process;
2. failed to decide an issue that it should have, or decided an issue that it should not have;
3. made an error in law; or
4. based its decision on an important factual error.^{Footnote 1}

Failure to consider the psychiatrist’s opinion and some medical notes

[10] The Claimant says that the General Division based its decision that the Claimant did not have a severe and prolonged disability on a number of important factual errors. In order to succeed on this basis, the Claimant must prove three things:

1. that a finding of fact was erroneous (in error);
2. that the finding was made perversely, capriciously, or without regard for the material that was before the General Division; and
3. that the decision was based on this finding of fact.^{Footnote 2}

[11] First, the Claimant argues that the General Division’s finding of fact that her disability was not severe was an important factual error, made without considering medical evidence from her psychiatrist and family doctor that supported her case.

[12] The decision summarizes some of the medical evidence, including

1. In 2017 Dr. Sahheed, family doctor, set out the Claimant’s injuries and depression that came about after the car accident, and stated that it was likely that she would not be able to enter the workforce;^{Footnote 3}
2. In 2014, Dr. Bahrami wrote that the Claimant had developed chronic pain in her upper body since the car accident;^{Footnote 4}
3. In November 2014, Dr. Joshi (psychiatrist) wrote that the Claimant had chronic pain.^{Footnote 5} In 2019, he wrote that the Claimant has chronic major depressive disorder and chronic pain, and was not capable of working in any job or being retrained.^{Footnote 6}
4. In April 2015, Dr. Dudley (psychiatrist) reported that the Claimant had somatic symptom disorder and adjustment disorder, that she had a complete inability to engage in any employment for which she was reasonably suited, and he doubted that she could participate in any competitive employment on a sustained basis. He also noted the Claimant’s physical abilities and limitations;^{Footnote 7}
5. In 2017, a rheumatologist reported increasing pain in her left trunk;^{Footnote 8}
6. In 2018, a neurologist reported that the Claimant had numbness and sensitivity in one forearm since having blood drawn 15 months prior.^{Footnote 9}

[13] The General Division decision then finds as fact that the Claimant’s physical and psychological examinations prior to and around the end of the minimum qualifying period  (MQP – the date by which a claimant must be found to be disabled to receive the disability pension) did not reveal any findings that would prevent her from attempting alternate work within her limitations (emphasis mine).^{Footnote 10}

[14] This finding of fact is an error. In April 2015, the Claimant’s psychiatrist doubted that she could work in any sustained manner. In November 2014, the Claimant’s psychiatrist wrote that the Claimant was not capable of any work or of being retrained. The General Division’s finding of fact was made without considering this evidence.

[15] In addition, Dr. Joshi treated the Claimant’s mental health illness until at least 2019. Dr. Joshi wrote a letter that summarized his involvement with the Claimant.^{Footnote 11} The General Division placed little weight on this report because it was dated after the end of the MQP. However, when the report is read as a whole, it is clear that it speaks to the Claimant’s condition in 2014 and her lack of significant progress since then despite his ongoing treatment. The letter states the following:

• the Claimant first saw the doctor in November 2014, and has seen him regularly since
• the Claimant stated that she felt sad and was crying all the time. A few months after the accident she began to have dizziness which still continues.
• during most of the sessions the Claimant is very sad, crying and he has to repeat questions many times
• the doctor has not seen much change in the Claimant’s pain and psychiatric condition
• the doctor does not believe that the Claimant’s condition will improve

This evidence also indicates that the Claimant was unable to work before the end of the MQP.

[16] Therefore, the General Division based its decision on an important factual error. The appeal must be allowed on this basis.

Other grounds of appeal

[17] The Claimant also argues that the General Division based its decision on an important factual error because it failed to consider the impact of her medication on her capacity to work. However, no such evidence was presented to the General Division. It cannot be faulted for failing to consider evidence that was not before it.

[18] Finally, the Claimant argues that the General Division based its decision on an important factual error because it failed to consider the totality of the evidence, and that it made an error in law. However, because I have decided that the Appeal Division must be allowed for the reasons set out above, I need not consider these grounds of appeal.

Remedy

[19] If the General Division makes an error and the appeal is allowed, there are different remedies that the Appeal Division can give.^{Footnote 12} In this case it is appropriate that the Appeal Division give the decision that the General Division should have given. These are the reasons why:

1. The record is complete;
2. Both parties requested that the Appeal Division give the decision that the General Division should have given if it intervenes;
3. The Tribunal may decide questions of fact and law necessary to finalize an appeal;^{Footnote 13}
4. Proceedings must be conducted as quickly as the circumstances and considerations of fairness and natural justice permit.^{Footnote 14}
5. This matter has been ongoing since 2017. Further delay would be incurred if the appeal were sent back to the General Division for reconsideration.

The Claimant had a severe disability before the end of the MQP

[20] The Claimant was raised in India. She completed Grade 12 there. She came to Canada as an adult and worked as a sewing machine operator, then a packager. She was in a car accident in 2013, and as a result has chronic back and sternum pain, arm pain and depression. The Claimant has not worked since the accident. She says that she is disabled by her physical and mental health conditions.

[21] The Claimant has consulted with a number of doctors. The Claimant’s family doctor has treated her for a long time. His clinical notes consistently report that the Claimant complained of ongoing pain after the accident, and she showed symptoms of depression.^{Footnote 15} In 2017, the doctor completed the report that accompanied the Claimant’s disability pension application. In that report he states that the Claimant will not likely be able to enter the workforce again.^{Footnote 16}

[22] In 2014, the Claimant also began to see a psychiatrist, Dr. Joshi. He reported in November 2014^{Footnote 17} that since the accident the Claimant has had neck, chest, left arm and shoulder pain, that she stays home and has difficulty with household tasks. The Claimant also appeared anxious and worried. The psychiatrist wrote that the Claimant had chronic pain and until her pain is under control it will be very difficult for her to function. She was taking Tylenol 3; Oxycontin and Ativan had not helped.

[23] Just before the General Division hearing Dr. Joshi wrote that the Claimant continued to have mental health issues, and had made little improvement despite ongoing treatment (see report summarized above). This report also speaks to the Claimant’s condition before the end of the MQP.

[24] I place significant weight on this psychiatrist’s evidence. Dr. Joshi has treated the Claimant since 2014. His evidence is consistent with other medical evidence, and with the Claimant’s testimony.

[25] Shortly after the end of the MQP, in April 2015, Dr. Dudley (psychiatrist) completed a detailed insurer’s examination.^{Footnote 18} He reported that the Claimant reported constant pain in her neck, low back and left arm. She was weak due to fatigue and her activities are limited; she has frequent headaches and disturbed sleep with nightmares. The report also refers to other examinations, including

1. A vocational assessment which described the Claimant as below average on intelligence testing;
2. A psychiatric assessment in 2013 that diagnosed major depressive disorder, and predicted a prolonged recovery period;
3. A multidisciplinary assessment in 2013 that concluded that from a psychiatric perspective the Claimant has a substantial inability to perform essential tasks for employment.

Dr. Dudley concluded that from a psychiatric perspective the Claimant has a complete inability to engage in any employment for which she is reasonably suited, based on her clinical presentation and lack of improvement in her symptoms since the accident. He was doubtful that the Claimant could participate in any competitive employment successfully on a sustained basis.

[26] I also place significant weight on this medical evidence. Dr. Dudley completed a thorough and detailed examination of the Claimant and assessments by other professionals. His conclusions are based on the evidence, and his observations.

[27] At the General Division hearing the Claimant testified about how she spends her time. She does not sleep well at night. She does not cook or do housework. She is sad and in pain. She does very little, if anything, during a typical day. She does not socialize and goes to temple only occasionally.^{Footnote 19} This evidence was not challenged. I give weight to the evidence. The Claimant’s testimony is credible. She testified in a straightforward manner. Her answers were short, and her demeanor was consistent with the description given by Dr. Joshi in his 2019 report.

[28] I note that the report from the pain clinic in 2015 states that the Claimant has no depression, anxiety or psychological hang-ups.^{Footnote 20} I place little weight on this since it is inconsistent with the psychiatric evidence that demonstrates that the Claimant was depressed, and was being treated for mental illness at that time.

[29] I also acknowledge that no severe injury was shown on an X-ray or other objective medical test. However, pain is not revealed on any such test. It affects each person differently. Similarly, mental illness is not revealed by a blood test or other such test. It is revealed in the reports of the Claimant’s treating doctors and her testimony.

[30] In addition, the Federal Court of Appeal states that it is not the diagnosis of a condition that determines whether a claimant is disabled, but their capacity to work.^{Footnote 21} Therefore, that the Claimant does not have medical conditions that are revealed as severe on an objective medical test is not determinative of the issue of whether she has a severe disability.

[31] The Federal Court of Appeal also states that to decide whether a claimant is disabled, the decision maker must look at their medical condition as a whole, and their personal characteristics, including age, education, language skills,, and work and life experience.^{Footnote 22} The Claimant was 36 at the end of the MQP. She is young. The Claimant’s age would not impact her capacity to work.

[32] However, the Claimant has high school education in India in Punjabi. She can only speak, read or write little English. She scored below average in intelligence testing. She worked only in unskilled manual labour. She has no transferrable skills. She has difficulty concentrating, and is fatigued. These circumstances would negatively impact the Claimant’s ability to work in Canada. They would also make it difficult for her to retrain, especially since the Claimant has little, if any, computer skills.^{Footnote 23}

[33] After considering all of the medical evidence and the Claimant’s testimony, I find that the Claimant had a severe disability before the end of the MQP. Her physical limitations and mental health illness made her incapable regularly of pursuing any substantially gainful occupation. The Claimant became disabled after the car accident in 2013.

[34] Because the Claimant had no capacity to work, it is not necessary that she prove that she could not obtain or maintain employment because of her health.

The Claimant’s disability is prolonged

[35] For a Claimant to be disabled under the Canada Pension Plan, they must have a disability that is both severe and prolonged. A disability is prolonged if it is long continued and of indefinite duration.^{Footnote 24}

[36] The Claimant’s disability is prolonged. The family doctors’ clinical notes demonstrate that the Claimant’s condition has not improved from the date of the car accident despite treatment with medication, pain clinic and psychiatric treatment. None of the treating doctors predicted that the Claimant’s condition would improve.

Conclusion

[37] The appeal is allowed.

[38] The Claimant is disabled under the Canada Pension Plan. She became disabled before the end of the MQP, which is December 31, 2014.

[39] However, a claimant cannot be deemed to be disabled more than 15 months before they applied for the disability pension.^{Footnote 25} The Claimant applied for the disability pension in October 2017. So, she is deemed to be disabled in July 2016.

[40] Payment of the disability pension begins four months after the claimant becomes disabled. Therefore, payment will begin in November 2016.