Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, D. W., has not met the incapacity provision as defined in the Canada Pension Plan (CPP). This decision explains why I am dismissing the appeal.

Overview

[2] The Claimant has been in receipt of a CPP retirement pension since October 1, 2017. He applied for a CPP disability pension on November 9, 2018. The Minister of Employment and Social Development Canada (the Minister) granted the disability application and determined a date of onset of disability of August 2017.

[3] The Claimant’s CPP disability pension would have become payable in December 2017, and ended in February 2018 when he turned sixty-five. The Minister determined that cancelling his retirement pension would result in an overpayment amount that was higher than his estimated disability pension underpayment. The Minister then offered the Claimant the option to cancel his retirement pension or withdraw his disability application, because a person cannot receive both a retirement pension and a disability pension at the same time.^{Footnote 1} On August 1, 2019, the Claimant wrote that he did not want to cancel his CPP retirement pension or withdraw his disability application. The Minister made the decision to continue paying out the Claimant’s retirement pension.

[4] On November 28, 2018, the Minister also received a Declaration of Incapacity form completed by the Claimant’s family doctor, Dr. Prenovault. It indicated that the Claimant had been continuously incapacitated since July 2010 because of chronic fatigue syndrome. The Minister refused to apply the incapacity provision because the Claimant’s limitations would not have continuously prevented him from forming or expressing an intention to make an application at an earlier date.  He was able to follow through with medical appointments, drive, discuss his medical history and plans for treatment, make decisions, and direct his care. There is no indication that he required the appointment of a public trustee, legal guardian, or power of attorney. The Claimant appealed the decision to the General Division of the Social Security Tribunal.

What the Claimant must prove

[5] For the Claimant to succeed, he must prove that he was incapable of forming or expressing an intention to make an application before the day on which the application was actually made.^{Footnote 2}

[6] The capacity to form an intention to apply for benefits is not different from the capacity to form an intention with respect to other choices that present themselves.^{Footnote 3} In assessing the Claimant’s capacity during the relevant period, I have to consider the medical evidence on file and his activities.^{Footnote 4} In this case, the relevant period is from July 2010 to November 9, 2018.

The reasons for my decision

[7] I find that the Claimant did not prove that he met the CPP incapacity provision. I reached this decision by considering the following issues and timelines.

Was the Claimant incapacitated between july 2010 and november 9, 2018?

July 2010 to October 31, 2011

[8] There is no question that the Claimant has limitations and suffers from a severe disability. He argues that he within a few hours of being bitten by a tick in July 2010 he started to have symptoms of pain, fatigue, and brain fog. That made his full-time job increasingly difficult to do.

[9] When the Claimant’s symptoms started, he was working for a large inspection and insurance company in a marketing and management role. His job was stressful and it required him to be mentally agile. After the tick bite he kept working, mainly from home, until he was fired on October 31, 2011. He was fired for non-medical reasons.

[10] The Claimant submitted that his supervisor was hired in 2008. She was difficult to work with and fired most of the staff in the Claimant’s department before he was fired. A co-worker even advised him shortly before being fired that the supervisor had it in for him.

[11] The Claimant described that his daily work routine after July 2010 involved brief periods of work followed by breaks to lay down. When laying down, he thought about work issues. He executed those issues when he returned to his desk. Brain fog, fatigue, and nausea slowed him down. His work days were much longer, but he persevered. The fact that the Claimant continued working in a full-time managerial role, even though it may have been modified, fails to support a finding of continuous incapacity between July 2010 and October 31, 2011. His dismissal from work was also for non-medical reasons.

November 1, 2011 to November 9, 2018

[12] The Claimant testified that he was only first made aware of a CPP disability pension in 2017. That is when a Service Canada employee suggested that he could apply. A phone conversation between the Claimant and the Tribunal on May 24, 2019 corroborates this. The fact that a particular choice may not have suggested itself to the Claimant does not indicate a lack of capacity.^{Footnote 5}

[13] The Claimant reported that between October 31, 2011 and 2013 he was essentially bedridden. His son moved in with him in 2015 to help him with his daily life. Prior to that time the Claimant rarely cleaned and he would go up to a week without showering.

[14] In 2015, the Claimant was diagnosed with skin cancer and underwent treatment. In 2016, he had inguinal hernia surgery. He submitted that he had no choice but to have those treatments. The inguinal hernia was a chronic condition that had gotten worse, and the treatment for skin cancer could not be put off. In order to have those treatments, the Claimant was not completely honest with his specialists about his other symptoms. He withheld information because he was afraid that that might refuse treatment.  He also testified that the specialists he was referred to and the treatments he received were only because of his own insistence. He advocated strongly for himself.

[15] The Claimant acknowledged that he consented to multiple treatments and surgeries between November 1, 2011 and November 9, 2018. He also argued that nobody really reads medical consent forms, and the mere fact that he signed them does not mean he had a high level of cognitive functioning.

[16] In 2015, 2017, and 2018 multiple independent specialists reported that the Claimant was a weightlifter and attended a local gym. In March 2015, Dr. Taylor reported that the Claimant liked to be in the gym quite a bit and was a weightlifter. The only reason he was not attending the gym was because of a knee injury. In 2017 and 2018, Dr. Wong reported that the Claimant was a bodybuilder and typically went to the gym where he warmed up on a bike and did resistance training. The Claimant denied that he was ever a weightlifter. He did attend a local gym off and on during the time period in question, but never consistently. I find it interesting though, that multiple specialists identified the Claimant’s same routine at different points in time. Regardless, the Claimant was able to decide to drive himself to and from the gym and exercise there when he was able to.

[17] In terms of financial affairs, the Claimant argued that since he lost his job he has not be able to manage his finances. His investments have not been generating interest and he has not been keeping track of his pension. Since before 2010, the Claimant’s bills have been set up for automatic payment, and he has continued to use a single account to withdraw money for personal use as needed.

[18] The Claimant described that he was very detail oriented and that he could easily multi-task before July 2010. Since that time, however, he has not been able to engage in any business, deal with a divorce that has been ongoing since 2005, fight an illegal parking ticket, settle his mother’s estate, or dispute a family insurance claim. It is not that he has not chosen to ignore those things, but rather that he has not been able to deal with them because of his incapacity.  What he was able to do, however, was pay to have his former spouse’s roof fixed rather than dispute the insurance claim, pay the illegal parking ticket, and agree to let his brother live in his mother’s house after she passed away.

[19] The Claimant testified that since July 2010 his main focus has been to get answers about his condition, cope with his symptoms, and try to get healthy. I accept that he has not been able to multi-task to the same level he was once, but that does not equate with incapacity.

[20] The medical evidence on file from the Claimant’s treating physicians also fails to support a finding of continuous incapacity during the time period in question. Specifically:

1. In October 2013, Dr. Ritchie reported that the Claimant was in between jobs and that he was going through an ugly divorce.
2. In March 2015, Dr. Taylor noted that the Claimant requested to have a longstanding inguinal hernia repaired. He reviewed the diagnosis and options for management with the Claimant and the Claimant signed a consent to have surgery.
3. In May 2015, Dr. Afifi, discussed treatment options for the Claimant’s right ear basal cell carcinoma. The Claimant opted for surgical management.
4. In June 2015, Dr. Afifi reported that he and the Claimant agreed to opt for micrographic surgery. The Claimant was able to provide verbal and written treatment consent.
5. In January 2016, the Claimant completed a pre-operative questionnaire independently. He indicated that he lived alone and had no concerns regarding his living arrangements. He also indicated that he did not require any community services following surgery.
6. In December 2016, the Claimant underwent a cardiac assessment. The Claimant was concerned about the possibility of coronary artery disease.
7. In April 2018, Dr. Wong reported that the Claimant typically went to the gym where he warmed up on a bike and then proceeded to do resistance training with weights. The Claimant had also reviewed his recent blood work and was concerned about his blood sugar levels. He wanted reassurance that he did not have diabetes and that he was not acidotic.

[21] I find that the medical evidence on file and the Claimant’s activities between November 1, 2011 and November 9, 2018 do not support a finding of continuous incapacity. He was able to drive, make decisions, schedule and attend regular medical appointments, consent to treatment both verbally and in writing, and self-advocate for treatment, specialist referrals, and testing. The Claimant lived independently until his son moved in with him in 2015, he did not require a power of attorney/power of health, and he managed his own day to day finances.

Conclusion

[22] I am dismissing this appeal.