Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, T. M., is not entitled to a Canada Pension Plan (CPP) disability pension.  This decision explains why I am dismissing the appeal.

Overview

[2] The Claimant is now 64 years old. He has an eye condition called retinitis pigmentosa. It is progressive and there is no cure. He is legally blind. He has not worked for many years. This is the second time the Claimant has applied for a CPP disability pension. The history of his applications matters to the result of this appeal.

[3] The Claimant first applied for a CPP disability pension in August 2009.  The Minister denied the application, so the Claimant appealed to a Review Tribunal.^{Footnote 1} The Review Tribunal dismissed the appeal in May 2011.^{Footnote 2} The Claimant applied for permission to appeal to the Pension Appeals Board, but the Board refused.^{Footnote 3}

[4] In November 2017, the Claimant applied for a disability pension a second time.^{Footnote 4} The Minister denied the application, so the Claimant appealed to the General Division of the Social Security Tribunal. The General Division dismissed the Claimant’s appeal in June 2019.^{Footnote 5} The Claimant appealed to the Tribunal’s Appeal Division. The Appeal Division said the General Division made some legal errors, so it sent the appeal back for reconsideration.^{Footnote 6} This decision is about that appeal.

What the Claimant must prove in this appeal

[5] A person who applies for a CPP disability pension has to prove that he has a severe and prolonged disability. A disability is severe if it makes a person incapable regularly of pursuing any substantially gainful occupation. It is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 7}

[6] The person also has to prove he became disabled by the end of his minimum qualifying period, which is based on his contributions to the CPP.^{Footnote 8} The Claimant’s minimum qualifying period ended on October 31, 1985.^{Footnote 9}

[7] However, the Claimant’s situation is complicated, because the May 2011 Review Tribunal already decided that he was not disabled on or before July 31, 1985.^{Footnote 10} I cannot change that decision.^{Footnote 11} That means that to succeed on this appeal, the Claimant has to prove that his medical condition changed after that. He has to prove that he became disabled between August 1, 1985, and October 31, 1985, when his minimum qualifying period ended.^{Footnote 12}

Why I made this decision without having a hearing

[8] I scheduled a hearing of this appeal for July 30, 2020. A few days before the hearing, the Claimant called the Tribunal and said he wanted to withdraw the appeal because he was not feeling well. After speaking to Tribunal staff, he decided that he actually wanted an adjournment. I adjourned the hearing.

[9] Two days later, the Claimant called the Tribunal again. He said he was certain that he wanted to withdraw his appeal. A withdrawal has to be in writing, and filed at the Tribunal.^{Footnote 13} Over the next two months, Tribunal staff sent the Claimant a blank withdrawal form and instructions by regular mail, courier and email. They tried to contact him by telephone to help him. The Claimant did not respond. I then set a deadline: if by October 5, 2020, he had not returned a signed withdrawal or asked the Tribunal to schedule a hearing, I would decide the appeal based on the documents and submissions already in the file.^{Footnote 14}

[10] As of today, the Tribunal has not received a written request to withdraw the appeal, nor has the Claimant contacted the Tribunal to ask for a hearing. I decided a hearing was not required, because there was no indication the Claimant would attend. As a result, I based my decision on the documents and submissions already filed.^{Footnote 15}

The reasons for my decision

[11] The Claimant did not prove that he has a severe and prolonged disability that started between August 1, 1985, and October 31, 1985.

There is not enough evidence that the Claimant could not work in 1985

[12] Retinitis pigmentosa is a congenital condition, meaning the Claimant has had it since birth.^{Footnote 16} The Claimant said he was diagnosed when he was about 10 years old.^{Footnote 17} His doctor said he was diagnosed in 1997.^{Footnote 18} The doctor did not know the Claimant in 1997, and did not refer to any medical records from that time. I do not know where he got that information.

[13] In any case, the date of the diagnosis is not that important, because my decision about when the Claimant’s disability became severe is not based on his diagnosis.^{Footnote 19} It is based on whether the Claimant had functional limitations that prevented him from earning a living.^{Footnote 20}

[14] The Claimant said his poor vision has always affected his ability to work. He did not havenight vision, and he had trouble seeing because of floaters in his eyes.^{Footnote 21} He said that in 1985 he was living on a reserve, collecting disability.^{Footnote 22} In 1997 he had surgery by a Dr. Underhill. His eyesight improved for a time, and he was able to work a bit after that.^{Footnote 23}

[15] The Claimant’s Record of Earnings shows he only worked enough to make valid CPP contributions in a few years since he turned 18.^{Footnote 24} Unfortunately, I know nothing else about his work history up to 1985, such as what jobs he held and when and why he stopped working. He earned very little in 1985, but I don’t know why. The Claimant’s low earnings do not prove that he became disabled between August and October of that year.

There is no medical evidence of the Claimant’s condition in 1985

[16] Furthermore, there is no medical evidence of the Claimant’s condition in 1985. More recent medical reports explain that the Claimant has a severe visual impairment.^{Footnote 25} But there is nothing that shows his vision worsened significantly between August and October 1985.

[17] The Claimant has to provide objective medical evidence of his disability for the period from August 1, 1985, and October 31, 1985. If he does not prove that he had a severe disability that started in that period, medical evidence dated after is irrelevant.^{Footnote 26}

[18] I recognize that the lack of medical evidence is not the Claimant’s fault. He lived on a reserve from 1976 to 1989, and it was hard to see doctors.^{Footnote 27} The doctor who treated him in 1997, Dr. Underhill, is deceased and his records were destroyed.^{Footnote 28} The Minister’s medical adjudicator tried to get records from 1985, but could not.^{Footnote 29} However, I have to follow what the Federal Court of Canada said in a decision called Dean.^{Footnote 30}The claimant in that case was in the same position as the Claimant here: through no fault of their own, they do not have medical records for the period during which they have to prove they became disabled.

[19] I do not think the Claimant has to produce a medical document that was actually written in 1985. But there has to be documentation related to that date, such as a later report from a doctor or other health care professional based on clinical observations or assessments made between August and October 1985. There is no evidence in the file that meets that requirement.

The Claimant’s personal characteristics are not a consideration

[20] Sometimes, an assessment of whether a person’s disability is severe has to include consideration of things like age, level of education, language proficiency, and past work and life experience. That is so there can be a realistic assessment of their work capacity.^{Footnote 31} I did not do that assessment here, because medical evidence is still needed to support a finding of disability, and in this case there is none for the period in question.^{Footnote 32}

The Claimant did not prove he became disabled in 1985

[21] The evidence does not show that the Claimant had functional limitations that affected his ability to work, that arose between August 1, 1985, and October 31, 1985. As a result, he did not prove that he had a severe disability at that time. This means I did not have to consider whether his work activity after 1985 was of any significance, or whether his disability was prolonged.

Conclusion

[22] The appeal is dismissed.