Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, V. K., has not met the criteria for the CPP incapacity provision. This decision explains why I am dismissing the appeal.

Overview

[2] The Claimant was involved in a motor vehicle accident on October 11, 2014. He applied for a Canada Pension Plan (CPP) disability pension on January 24, 2017. The Minister approved his application and awarded him maximum pension payment retroactivity based on the date his application was received.

[3] The Claimant requested that he be awarded additional disability pension retroactivity because he was continuously incapacitated from making an application between the time of his car accident and the date his application was received. The Minister denied the request for reconsideration and found that the CPP incapacity provision could not be applied. The Claimant continued to be able to drive, he did not require a power of attorney or power of health, and there is no evidence that he was unable to make medical decisions for himself following his accident. The Claimant appealed the decision to the General Division of the Social Security Tribunal.

[4] On May 28, 2019, the General Division dismissed the Claimant’s appeal. The member found that the Claimant had failed to establish that it was more likely than not that he lacked the capacity to form or express the intention to apply for a disability pension earlier than he did.

[5] The General Division decision was appealed to the Appeal Division. The Appeal Division granted leave to appeal after finding that there was an arguable case and that the General Division had failed to provide a fair process.

[6] On April 17, 2020, the Appeal Division found that the General Division had failed to provide a fair process by allowing the Claimant’s lawyer, who was with him at the time of his accident in 2014, to both give evidence and act as counsel in the same matter. The Appeal Division returned the case back to the General Division for reconsideration.  

Issues in the Tribunal process

[7] Following the Appeal Division decision, I invited all parties to provide submissions on how the case reconsideration should proceed. The Claimant’s lawyer was agreeable to a new teleconference hearing, but she anticipated that questioning of the Claimant would be fruitless because of his poor recollection of events following his accident. She also submitted that the original recording of the General Division hearing should not form part of the current hearing file, because it contained biases in favour of the Minister. The previous General Division member emphasized how strong the Minister’s arguments would be to overcome, without regard for the evidence. The Minister was agreeable to a new teleconference hearing given the complexity of the case.

[8] On September 10, 2020 a pre-hearing conference was convened with the Claimant’s lawyer and Minister’s representative. The purpose of the conference was to discuss inclusion of the previous General Division hearing recording, and to clarify the role that the Claimant’s lawyer would be taking.

[9] The Claimant’s lawyer confirmed that she would be acting only as a representative. To avoid any real or perceived bias, I made the decision not to review or consider the previous General Division hearing recording. The Appeal Division returned the case back to the General Division for reconsideration because there was not a fair process. Specifically, the Claimant’s lawyer was concurrently allowed to provide witness testimony and represent the Claimant. The hearing recording contains that testimony.  

What the Claimant must prove

[10] For the Claimant to succeed, he must prove that he was incapable of forming or expressing an intention to make an application for a CPP disability pension on his own behalf prior to the day it was actually made. If that is the case, then I must decide when he became incapable.

[11] The period of incapacity must be a continuous one. When the incapacity provision applies, a Claimant’s application may be deemed to have been received at an earlier date than it was actually received.^{Footnote 1}

The Claimant did not attend the hearing

[12] The Claimant’s lawyer was the only one that attended the hearing. She submitted that she had recently been in contact with the Claimant over email. Unfortunately, he had been unable to sleep for several nights leading up to the date of the hearing. His lack of sleep made him paranoid, confrontational, and unable to communicate effectively. The Claimant’s lawyer wanted to proceed with the hearing in the Claimant’s absence, and to have a decision rendered based on the written evidence contained in the Hearing File.

Was the Claimant incapacitated according to the CPP definition?

The Claimant’s actions during the relevant time do not support a finding of incapacity

[13] The capacity to form an intention to apply for a CPP disability pension is similar in kind to the capacity to form an intention with respect to other choices in life. Nothing in the CPP requires the word ‘capacity’ to imply anything other than its ordinary meaning.^{Footnote 2} In other words, the intention to make an application for a CPP disability pension is no different from the intention to make other choices that present themselves to a person.^{Footnote 3}

[14] The Claimant has previously submitted that he was not able to achieve restorative sleep for nearly 2 years after his motor vehicle accident. That, combined with his physical injuries, rendered him unable to function in any capacity. I do not question that the Claimant has been suffering from a severe and prolonged disability since his motor vehicle accident in 2014. His multiple injuries and sleep deprivation undoubtedly impacted his cognition, but that does not necessarily equate to an inability to form or express an intention. So, in order to help cast light on any continuous period of incapacity, it is important to look at the Claimant’s activities during the relevant period.^{Footnote 4}

[15] The Claimant lived alone at the time of his accident. According to a letter dated October 22, 2018, he had nearly full-time assistance from a friend during the day for at least 5 months after his accident. In addition to helping the Claimant with his activities of daily living, the friend would pay the Claimant’s bills online for him. After that, the Claimant would go to the bank and have a teller assist him. The Claimant has also submitted that he had no knowledge of his financial investments between the time of his accident and January 2017. According to Dr. Chue in 2015, however, he claimed to have lost everything in his investments because he needed to cash in $500,000 of RRSPs.^{Footnote 5}

[16] The Claimant indicated on his initial application that he required some assistance with cooking, that he had to hire someone to help with housekeeping, that he had to ask for assistance when he went grocery shopping, and that simple errands had to be dragged out over several days because low energy. He was, however, able to drive.

[17] During a phone call with Service Canada in January 2017, the Claimant was able to provide the contact information for the primary caregiver of his children and a claimed disability date for when he could no longer work.

[18] All of these factors are relevant in my assessment of the Claimant’s incapacity.

The medical evidence is not supportive, and the Claimant directed his own medical care

[19] Dr. Khan, who was not the Claimant’s treating physician at the time of his accident, completed a declaration of incapacity in January 2017. Dr. Khan reported that the Claimant’s incapacity began in October 2014 and was ongoing at the time of his report. The incapacity was reportedly due to post-concussive syndrome and chronic traumatic encephalopathy, but he provided no other substantiating reasons. Due to the fact that Dr. Khan failed to provide substantiating evidence on the declaration of incapacity and he was not one of the Claimant’s treating practitioners during the relevant period, I have put more limited weight on his assessment.

[20] On June 13, 2015, the Claimant’s family doctor, Dr. Seto, submitted a detailed list of ongoing symptoms the Claimant had reportedly provided.^{Footnote 6} The list was written in the first person, and I find that it demonstrates that the Claimant had good insight into his condition and ongoing limitations. The list included the following:

• Deep exhaustion/minimal strength (example: half a chin up instead of 25 to 50/struggling to even do push-ups)
• Still need to keep my legs elevated in my convalescing chair and two pillows under my calves
• My usual 175+ IQ is way below that, combined with low comprehension/retention abilities – which are normally at a super high level
• Lack of interest in sex
• Choking/gagging/bringing up chunks of phlegm/severe allergy symptoms even though I don’t have allergies
• Extreme mood swings (where I’m normally calm and centered)
• Losing muscle mass and getting fat
• Ears ringing extreme tinnitus/head plugged sometimes so severe it feels like my head will explode
• When my head is turned left or right, and I returned to center it takes a second or so for my brain to catch up
• Heat exhaustion symptoms when it’s not even really hot out
• I’ve not been to the gym once since the crash
• Biggest issue was getting on an airplane post-concussion, and then shopping, reading, computer, TV, etc. because that an absolute no-no, but no one in Austin cared about my concussion, because they were concerned about my broken back
• Now able to sit anywhere and drive without tailbone cushion
• I have aged 10 years plus (I feel like how Burt Reynolds looks today)
• Still have trouble with overstimulation in public places (restaurants and stores, etc.)
• Constantly feeling overwhelmed/any little thing pushes me over the edge
• Have lost half a foot to 1 foot in jumping ability
• Normally an avid reader, now I rarely read because of no interest and can’t comprehend

[21] The Claimant provided another undated, but more detailed, first-person account comparing his pre- and post-accident mental and physical abilities.^{Footnote 7} It too demonstrates retained insight and the ability to provide logical reasoning as to why the Claimant chose to pursue the treatments that he did after his accident.

[22] The Claimant also participated in multiple independent medical assessments in 2015. Dr. Siddiqi reported in July 2015 that the Claimant was able to provide consent. He also noted that the Claimant advised him of his strong belief in alternative medicine, and that is what led him to pursue brainwave optimization therapy, rolfing massage therapy, and to treat himself with cold laser for approximately 3 hours each day at home.

[23] In August 2015, Dr. Chue, psychiatrist, also reported that the Claimant was able to review and provide consent before proceeding with his examination. Dr. Chue rated the Claimant’s global assessment of functioning as 60, or mildly impaired. He also reported that the Claimant was motivated to recover, but on his own terms. The Claimant relayed to Dr. Chue that he was interested in car design as a potential alternate path of employment. He was also able to describe his own injuries and those of his passenger following the accident. Of particular note was that the Claimant advised Dr. Chue that he had educated himself on cold lasers and had purchased his own to be able to administer his own treatment.    

[24] The evidence contained in the independent medical examinations in 2015 shows that the Claimant was able to provide written and verbal consent to assessments and treatment. He was also able make decisions about the treatments he did/did not wish to receive, educate himself and seek out the treatments he wanted to pursue, treat himself, provide insight into the status of his condition and functional limitations, drive a vehicle, and make arrangements for the assistance he required at home.

[25] The Claimant has failed to convince me that it is more likely than not that he was incapable of forming or expressing an intention to apply for a disability pension on a continuous basis between October 2014 and January 2017.

Conclusion

[26] I am dismissing this appeal.