Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not entitled to a Canada Pension Plan (CPP) disability pension.

Overview

[2] The Claimant was rear ended while driving in May 2018 (the “MVA”). The Claimant is a police officer but he was not on duty at the time of the MVA. The Claimant bases his CPP application for disability on concussion, adjustment disorder, mixed anxiety, depressed mood, headaches/migraines, trouble concentrating and memory loss. The Minister received the Claimant’s application for the disability pension in October 2018. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

[3] To qualify for a CPP disability pension, the Claimant must meet the requirements that are set out in the CPP. More specifically, the Claimant must be found disabled as defined in the CPP on or before the end of the minimum qualifying period (MQP). The calculation of the MQP is based on the Claimant’s contributions to the CPP. I find the Claimant’s MQP to be December 31, 2020. As the MQP is a future date, the Claimant must be found disabled by the date of the hearing.

Issue(s)

[4] Did the Claimant’s conditions result in the Claimant having a severe disability, meaning incapable regularly of pursuing any substantially gainful occupation by the date of the hearing?

[5] If so, was the Claimant’s disability also long continued and of indefinite duration by the date of the hearing?

Analysis

[6] Disability is defined as a physical or mental disability that is severe and prolonged^{Footnote 1}. A person is considered to have a severe disability if incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death. A person must prove on a balance of probabilities their disability meets both parts of the test, which means if the Claimant meets only one part, the Claimant does not qualify for disability benefits.

Severe disability

The Claimant does not have a severe disability

[7] The Claimant testified that he was in a MVA on May 15, 2018. The Claimant testified that he is 37 years old, separated and a father to 2 children, 4 years and 6 years old. The Claimant currently lives in a detached home. He has a college diploma, a couple of years of university in business administration but did not graduate. The Claimant graduated college with a diploma in Police Foundations.

[8] The Claimant testified that the MVA caused significant force to his head. The MVA caused his vehicle to spin. The Claimant testified that he had a dash camera on his vehicle showing that he was hit 3 times in the MVA. The Claimant testified that he was unable to get out of the vehicle after the MVA. He was dry heaving, confused and had a vague idea that he had been in a MVA. The Claimant went to the hospital and had his injuries assessed. He was not able to spell his name forwards or backwards and it was determined that he had a concussion. He was sent home with medicine and a fact sheet about concussion symptoms. The Claimant testified that his body was sore including his neck and back. The Claimant further testified that the treatments he has received have helped.

[9] The Claimant testified that he is struggling with his cognitive impairment. His comprehension and processing were impaired by the MVA. The Claimant testified that he has learned strategies to cope with these symptoms but his energy is drained when using his cognitive functioning. The Claimant testified that he can read 3-5 pages of a book but will forget what he has read. A strategy he uses is note-taking while he reads to improve his memory. He is seldom on a computer – at most an hour daily – because the screen bothers him.

[10] The Claimant also has trouble sleeping. He has sporadic sleep. The Claimant testified that he takes medications for his mood and migraine headaches. However, his ability to sleep depends on what activities he has done during the day. The Claimant testified that with a lot of physical activity he sleeps less well. He uses marijuana to get better sleep. The Claimant testified that physically he feels good but he has neck pain.

[11] The Claimant further testified that he had a difficult time in January/February 2019. He was on anti-depressants and finds that Covid has negatively impacted his ability to get better. The treatment he has received includes massage and chiropractic treatments that have helped alleviate soft tissue symptoms, occupational therapy has helped him organize his day-to-day activities, and his psychologist has been very helpful. The Claimant joined Toastmasters to try to engage with others. He is also being assessed by neuro-cognitive physicians and psychiatrists as well as his family doctor. The Claimant is currently on LTD through his employer.

[12] A report by Dr. Mahar dated November 29, 2019 noted that the Claimant was seen for post-traumatic syndrome from the MVA.^{Footnote 2} Dr. Mahar wrote that the Claimant reported that his apathy was mild but his cognitive difficulties remain a challenge. The Claimant was noted to have headaches 20 days a month with pain on the left side behind his eye, mostly mild. It was further noted that the Claimant infrequently had a more severe throbbing headache with nausea, photophobia and phonophobia without vomiting or migraine aura. The Cambia prescription was said to provide reasonably prompt relief. Dr. Mahar’s impression was positive with gradual improvement of the Claimant’s post-traumatic syndrome. The clinical investigations did not reveal any abnormalities and Dr. Mahar concluded that there was no evidence of substantial brain impairment.^{Footnote 3} A follow up with Dr. Mahar was set for 7 months.^{Footnote 4}

[13] A report from the X, Driver Rehabilitation Services, Driving Evaluation Report dated March 5, 2019 is filed with the Tribunal. It provides that the Claimant was continuing to report anxiety both as a driver and passenger, fatigue, decreased concentration, difficulties with multi-tasking, decreased concentration and attention skills, and headaches. It was noted that the Claimant was not experiencing any ongoing pain at the time of the report.^{Footnote 5} It was further noted that the Claimant had a valid driver’s licence. The Claimant reported that his work as a police officer would require him to be in his car 90% of the shift and he had a 50-55 minute commute to work. The Claimant had not returned to work.^{Footnote 6} The Claimant drove around his hometown where he felt comfortable. The Claimant indicated that he had a 30-40 minute tolerance for driving. The Claimant reported feeling anxious both as a passenger and a driver post MVA.

[14] In the driving evaluation report the Claimant scored well on his perception and cognitive skills and was noted to have demonstrated good, simple focused attention, problem-solving abilities and good perceptual skills. The Claimant was noted to have gone home and rested for 3 hours after the assessment.^{Footnote 7} The Claimant demonstrated psychological symptoms of anxiety during his road test.

[15] The Claimant had a witness attend at the hearing and give evidence. Dr. William Fulton is a Registered Psychologist who conducted a neuropsychological evaluation on the Claimant on September 15, 2020. Dr. Fulton testified that it is highly unlikely that the Claimant will fully recover because his cognitive impairment is the primary component. Dr. Fulton testified that there is no chance that the Claimant can return to work as a police officer. Dr. Fulton testified that the Claimant could be a helper but would likely forget what he is told to do. Dr. Fulton testified that he could not see any opportunity for the Claimant to be employed.

[16] In his report, Dr. Fulton wrote that the Claimant’s symptoms were indicative of a post-concussion syndrome magnified by chronic pain, non-restorative sleep and psychological/emotional symptomatology.^{Footnote 8}

[17] Dr. Fulton’s report refers to a number of other reports including a report from Intrepid Investigations dated August 22, 2018. The Claimant had been under surveillance for 3 separate days in August 2018 and was noted to move garbage bins, take his child to daycare, run errands, attend psychological services, engage in activity on his property including placing a ladder and tools inside his vehicle as well as attending 2 private residences. At the private residences the Claimant was seen assembling a light fixture, removing and replacing a light fixture and working on a trailer.^{Footnote 9} Further, the Claimant was observed attaching a trailer to the rear of a pickup truck, as well as unloading furniture from the trailer and carrying it into the residence.^{Footnote 10}

[18] Dr. Fulton’s report refers to further surveillance conducted on the Claimant in April 2019 for 3 days with similar activity noted driving his vehicle, attending a store, picking up his older child from school, going to a fast food restaurant and removing a black case from his pickup truck.^{Footnote 11}

[19] Dr. Fulton noted that the Claimant was diagnosed with a mild Cognitive Disorder, an Adjustment Disorder and a Chronic Pain Disorder in the Neurocognitive Assessment Report dated October 22, 2018. However, Dr. Fulton further noted that a more comprehensive assessment of the Claimant’s cognitive functions may have revealed a greater degree of impairment that that reflected in report of October 22, 2018.^{Footnote 12}

[20] Dr. Fulton wrote in his report that the Claimant had not demonstrated a consistent and self-sustained degree of functional improvement over the first 6 months post-injury which would be need to support return to work planning. Dr. Fulton noted that the Claimant had been placed under surveillance by his insurer wherein he was witnessed carrying out day-to-day routine tasks and what he described as minimal physical activities regarding home repairs. Dr. Fulton further wrote that he did not find this information to be salient regarding the Claimant’s cognitive abilities or emotional state but that the surveillance did construct an adversarial platform of mistrust between the Claimant and his insurer.^{Footnote 13}

[21] Dr. Fulton concluded that the Claimant’s persistent symptoms, at 2 years and 3 months post-injury, indicate evolving chronicity, an exigency associated with a less optimistic long-term prognosis for further recovery.^{Footnote 14}Dr. Fulton concluded that the Claimant is wholly disabled from the neuropsychological perspective as of the date of the report and for the foreseeable future.^{Footnote 15}Further, Dr. Fulton concluded that the Claimant is wholly and permanently disabled with regard to his resumption of employment as a X police officer.^{Footnote 16}

[22] The Claimant’s family physician, Dr. Bari completed the CPP medical report dated December 17, 2018. Dr. Bari diagnosed the Claimant with post-traumatic stress syndrome, and generalized anxiety with symptoms of severe headaches, neck pain nausea, inability to focus or concentrate on tasks, sleep disturbance, nervousness, and anxiety.^{Footnote 17} Dr. Bari noted the Claimant’s functional limitations were that he was unable to perform strenuous physical work, unable to focus or concentrate on tasks, unable to work in high stress environment, unable to handle a firearm, which is required for his work as a police constable.

[23] Dr. Bari’s prognosis was that the Claimant’s condition was likely to improve in more than a year. Dr. Bari also noted that the Claimant has migraine headaches where he is unable to focus or concentrate on tasks during severe exacerbations.^{Footnote 18}Dr. Bari wrote that he had advised the Claimant to stop working on May 15, 2018, the date of the MVA. Dr. Bari answered that he expected the Claimant to return to any type of work in the future within 6 to 12 months. Dr. Bari expected that the Claimant could do modified work.^{Footnote 19}

[24] The Claimant’s CPP Questionnaire provided that he stopped working May 5, 2015 as a result of the MVA.^{Footnote 20} The Claimant answered that he had not done any work in the past 2 years. He answered that he planned to return to work in the near future but it was unknown at that time whether he would return to his former employment.^{Footnote 21}The Claimant explained that he had trouble remembering things and had headaches/migraines. He provided that he had emotional issues he was dealing with through a psychiatrist.^{Footnote 22} The Claimant did not note any functional limitations with sitting, standing, walking, lifting, carrying, reaching, bending, personal care, or bowel and bladder habits. He noted that he did limited household activities. He provided that he could only drive for 30 minutes and then needs rest. His sleep varies 4-6 hours and he had difficulty with cognitive stimulation. Further, that he had difficulty remembering without a notepad. Hard time thinking/speaking in fluent speech. Finally, the Claimant noted that he limited his screen and computer time.^{Footnote 23}

[25] During the hearing the Claimant was asked if he could engage in any work aside from policing. The Claimant testified that he does not see any comparable career he could do to that of policing. The Claimant testified that he had sacrificed a lot in his career and achieved the goals he set for himself. The Claimant testified that he could cut grass but that would not give him the same level of income as policing. The Claimant testified that he would struggle to do any work that was cognitive.

[26] Based on the evidence before me, I do not find that the Claimant has shown that he has a severe disability within the meaning of the CPP. I find that the Claimant has capacity to work for the reasons I have set out below. I find that the Claimant has not shown that he is incapable of regularly performing any substantially gainful employment. The Claimant’s own testimony and the bulk of the medical evidence establishes that the Claimant has improved generally with some cognitive issues remaining. The surveillance of the Claimant is in keeping with his testimony that he could engage in physical labour.

The Claimant has capacity to work

[27] I must assess the severe part of the test in a real world context^{Footnote 24}. This means that when deciding whether a person’s disability is severe, I must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. The Claimant is relatively young, has a college diploma, many years experience as a police officer as well as work as a security guard. The Claimant is fluent in English and also attended university although he does not have a degree.

[28] The medical evidence does not support a finding that the Claimant is precluded from all types of work. While I appreciate that the Claimant may be precluded from returning to his former work as a police officer, I am not satisfied that he would be unable to return to modified duties. Further, if the Claimant is unable to return to modified duties with the police service, I find that the Claimant has capacity to work in alternative employment.

[29] I prefer the medical evidence of Dr. Bari over that of Dr. Fulton. Dr. Bari is the Claimant’s family physician and Dr. Bari’s assessment is supported by the diagnostic evidence filed with the Tribunal. Dr. Fulton’s conclusion in his report that the surveillance of the Claimant is not salient, is inaccurate in respect of the CPP and the within appeal. In considering the Claimant’s appeal, I must consider whether he has capacity to do any type of substantially gainful work, not just the work he has done. The fact that the Claimant was observed engaging in local driving, shopping, as well as physical work around his property and at other private residences, demonstrates capacity to work and is salient to this hearing.

[30] During the hearing Dr. Fulton testified that the Claimant could work as a helper but would forget what he is told. However, Dr. Fulton’s assessment does not appear to be supported by the evidence. The surveillance of the Claimant shows that he was engaging in activities, including driving, that appeared to be self-directed, were physical in nature and that followed a logical sequencing of actions such as loading a ladder into the vehicle and installing a light fixture at another location. Dr. Bari expects that the Claimant will return to work including possibly modified duties. The Claimant testified that he could cut grass but could not engage in cognitive work.

[31] Dr. Fulton testified that the Claimant was wholly disabled from police work and it may be the case that the Claimant is unable to return to his previous employment. However, where there is evidence of work capacity, a person must show that efforts at obtaining and maintaining employment have been unsuccessful because of the person’s health condition^{Footnote 25}. That has not happened here as the Claimant has not returned to employment since the MVA. The Claimant’s evidence as supported by most of the medical evidence filed with the Tribunal is that the Claimant’s conditions have improved, including his headaches which are reasonably treated with medication.

[32] The Claimant is understandably concerned that other employment he could do would not provide the same level of income as policing. While understandable, that is not a valid factor that I can take into account when determining whether the Claimant has a severe disability. I must consider whether the Claimant is capable regularly of pursuing any substantially gainful employment and I have concluded that he is capable.

[33] The measure of whether a disability is “severe” is not whether the person suffers from severe impairments, but whether the disability prevents the person from earning a living. It’s not a question of whether a person is unable to perform their regular job, but rather the person’s inability to perform any substantially gainful work^{Footnote 26}. I find that the Claimant can perform substantially gainful work.

[34] I must assess the Claimant’s condition in its totality, which means I must consider all of the possible impairments, not just the biggest impairments or the main impairment^{Footnote 27}. I have considered all of the Claimant’s conditions and, as noted above, the Claimant has made improvements to his conditions since the MVA. The Claimant’s own testimony is that his remaining issue is cognitive with memory issues but that he could work in a job such as cutting the grass. For the reasons I have set out above, the evidence does not meet the test for severe under the CPP.

[35] In consideration of the evidence, I do not find that the Claimant has a severe disability. Having determined that he does not have a severe disability, I do not need to consider whether he has a prolonged disability.

Conclusion

[36] The appeal is dismissed.