Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Claimant, M. C. isn’t entitled to payment of his Canada Pension Plan (CPP) disability pension before August 2018. This decision explains why I am dismissing the appeal.

Overview

[3] The Claimant applied for a CPP disability pension in July 2019.^{Footnote 1} The Minister of Employment and Social Development (Minister) approved the application. Payment was effective as of April 2018. Payments began August 2018.

[4] The Claimant asked for reconsideration on retroactive entitlement.^{Footnote 2} The Minister refused the Claimant’s request. The Claimant appealed to the Social Security Tribunal’s General Division.

[5] A pre-hearing conference was held on October 15, 2020. The goal of the conference was to provide the Claimant with more information on how the “incapacity provision” works under the CPP.^{Footnote 3}

What I have to decide

[6] Is the Claimant entitled to payment of his CPP disability pension before August 2018?

[7] Was the Claimant incapable of forming or expressing an intention to make an application before July 2019?

Reasons for my Decision

[8] I have decided the Minister was right to start paying the Claimant’s CPP disability pension as of August 2019. The Claimant did not meet the test for incapacity, so his pensions could not be paid before that date. I reached that decision by considering the following issues.

The Minister was right to start paying the Claimant’s CPP disability pension as of August 2018

[9] The Claimant had a severe and prolonged disability in November 2012.^{Footnote 4} However, the Canada Pension Plan says a Claimant can’t be considered disabled more than 15 months before the Minister receives their disability pension application. After that, there is a four-month waiting period before payments start.^{Footnote 5}

[10] The Minister received the Claimant’s application in July 2019. That means he is considered to have become disabled in April 2018. Payment of his pension starts as of August 2018.

[11] There is an exception to this rule. It is called the incapacity provision.^{Footnote 6}

The incapacity provision does not apply to the Claimant

[12] When the incapacity provision applies, it means a person’s CPP application can be treated as if they applied before they actually did.^{Footnote 7}

[13] To be able to use the incapacity provision, the Claimant had to prove it is more likely than not that he was continuously incapable of forming or expressing an intention to make an application before July 2019. I know he has health problems and challenges since his accident in November 2012. But, he does not meet the test for incapacity. Here is why.

[14] It does not matter if the Claimant did not know he had to apply, or could not fill out the application form. He had to be incapable of forming or expressing an intention to apply. This is no different than having the capacity to form an intention to make other relevant choices in life.^{Footnote 8}

[15] In deciding if the Claimant met the test for incapacity, I had to look at medical evidence, as well as evidence of what else he was doing during the period he says he did not have capacity to apply for his CPP disability pension.^{Footnote 9}

Medical evidence

[16] The Claimant was involved in a very serious car accident on November 6, 2012. He suffered numerous physical injuries, depression and Post-traumatic stress disorder (PTSD).^{Footnote 10} The Claimant experienced severe pain and reduced range of motion in his neck and arms. He also had sleep disturbance and poor concentration. He was easily agitated and had difficulty with social situations.

[17] In a Declaration of Incapacity, Dr. MacLeod wrote that the Claimant’s incapacity began on November 6, 2012 and ended in January 2014.^{Footnote 11} She said he was extremely ill because of life threatening injuries from the car accident and he was unable to cope with anything other than his medical recovery.  Dr. MacLeod only became his doctor in February 2015.^{Footnote 12} She was not his doctor at the time of the accident or at the time of incapacity. However, it was her opinion that based on a review of the medical file that the Claimant would have been incapacitated from November 6, 2012 to January 2014. However, even if the Clamant was incapacitated during this time, the Claimant cannot rely on the incapacity provision. This is because he made his application more than one year after January 2014, when Dr. MacLeod says he regained capacity.^{Footnote 13}

[18] However, a Declaration of Incapacity is not the determinative factor in finding incapacity under the CPP.^{Footnote 14} This means I can consider other information as well. Dr. MacLeod later wrote that because of mental illness (PTSD and Major Depressive Disorder), the Claimant lacked capacity to apply for the benefit from November 2012 until July 2019.^{Footnote 15} She said the Claimant’s severe mental impairment, which resulted in low mood, poor sleep, reduced motivation and poor concentration rendered him unable to undertake a complex task like the CPP application. The Claimant also testified that he has been incapacitated since the time of the accident. He said since that time, his life has completely changed. He said his behaviour changed after the accident. He was very agitated, anxious and frustrated. He had a difficult time dealing with people. His aunt said there were times when he scared her because of his demeanor.

[19] The Claimant’s aunt told me that she noticed a change in the Claimant after the accident. She said he was anxious and suffering from depression. He would forget to eat and disregarded his hygiene. I believe the Claimant and his aunt. There is no doubt from the testimony and the medical evidence that the Claimant is disabled. However, being disabled is not the same as being incapacitated.^{Footnote 16}

[20] I also have to look at the Claimant’s activities between November 2012 and July 2019, to see what they show about his incapacity.

Evidence of the Claimant’s activities

[21] The Claimant testified that after the accident he was focused on his medical condition. Dr. MacLeod also said she did not believe the Claimant would be able to undertake a complex task like the CPP application before July 2019. However, when assessing capacity, I must not focus on the ability or inability of the Claimant to have been able to “make an application”. Many people are unable to “make an application”, but that is not the relevant kind of incapacity. It is having the capacity to “think about making an application”.^{Footnote 17}

[22] The capacity to form the intention to apply for benefits is not different in kind from the capacity to form an intention with respect to other choices, which present themselves to an applicant.^{Footnote 18} I find that the decisions made by the Appellant show that he was not incapacitated on a continuous basis from November 2012 to July 2019. He had capacity to engage in legal litigation, make decisions regarding his living arrangements and his health care and he inquired about other possible benefits.

[23] The Claimant testified that he lived with a couple for several months after his accident. He then moved to Red Deere and stayed with his son. He decided in November 2014 to move from Alberta back to Nova Scotia where his mother lived. He explained he made this decision because the insurance payments he was receiving ended. He had no money to continue living in Alberta, so he moved in with his mother until 2016. In 2016, he began sharing a home with his cousin. He told me that he pays his cousin a fixed amount each month for rent and utilities. The Claimant said he has a pay-as-you-go phone. When he is out of minutes and has money, he purchases more minutes for his phone.

[24] The Claimant was involved in legal litigation from around the time of the accident until the summer of 2018. He told me that while he was living with the couple after the accident, the husband helped him find a lawyer in Edmonton. The Claimant testified that he communicated with the lawyer on the phone and by e-mail. He received a package of papers from the lawyer, which included a retainer agreement. The Claimant said he signed the documents to hire the lawyer. From March 2016 to June 2018, the Claimant returned to Alberta several times to participate in hearings, specialist consultations, physical tests and a mediation hearing. The Claimant accepted the advice of his lawyer in October 2017 and refused the first offer to settle from the insurance company because the amount was too low. In spring 2018, (around June 2018) he returned to Alberta for a mediation hearing. He explained that it was held in a conference room with a private judicial person who asked him questions.^{Footnote 19} Negotiations happened and he accepted his lawyer’s advice and agreed to the settlement offer. The fact that the Claimant hired a lawyer, consulted with the lawyer, considered and accepted legal advice, participated in negotiations and agreed to a settlement, all support that the Claimant does not meet the incapacity provision.

[25] The Claimant also testified that he has no Power of Attorney or medical directive. The evidence shows that he is actively participating in his medical care and making decisions regarding treatments. He is in charge of his own finances and medical decisions. He often gets a ride to his doctor’s appointments, but he goes into the doctor’s office by himself. In February 2015, the Claimant told his doctor that he would like to see a psychiatrist.^{Footnote 20} In August 2015, he asked his family doctor to fill out some paperwork for him.^{Footnote 21} In August 2018, the Claimant told Dr. MacLeod that he wanted to reduce the amount of narcotics he was using.^{Footnote 22} He told me that he is now using half of the amount he was at that time. He now uses only two narcotics a day along with his other medications.

[26] The Claimant told the Minister in August 2019 that he had stopped his bi-weekly session with Heather Cross (registered support worker) in February or March of 2019 because he did not find them helpful. He told me that after stopping the sessions, his mental health declined and he has since resumed the sessions.

[27] In February 2015, Dr. MacLeod suggested that the Claimant check with the Department of Veteran Affairs, Employment Insurance or Social Services to ask about getting any type of help.^{Footnote 23} He told me that he went to Employment Insurance, but did not qualify. He also asked at the Department of Veteran Affairs and was told there was a two-year waiting list to see a mental health professional. The Claimant testified that he did get financial assistance from Social Services to help pay his rent for two or three months in 2016.

[28] In July 2019, his aunt told him about the CPP disability benefit and the Claimant applied. He said he had not known about the benefit until then. However, a lack of knowledge about entitlement to a disability pension does not fall within the scope of incapacity.^{Footnote 24}

[29] Despite his medical conditions and the difficulty he has managing, the Claimant does not meet the test for incapacity. He was able to actively participate in decisions regarding his health and treatment; he was able to apply for and inquire about other aid programs; and he hired a lawyer and made decisions regarding legal matters. The evidence shows me that there was not a continuous period of incapacity prior to July 2019 when the Claimant made his application for the CPP disability benefit.

[30] I sympathize with the Claimant, but I have to apply the law as it is set out in the CPP Act. I can’t disregard the law for compassionate reasons or because of extenuating circumstances.

Conclusion

[31] The Claimant was not continuously incapable for forming or expressing an intention to make a CPP disability application before July 2019. He does not meet the test for incapacity, so I cannot deem him to have applied before then.

[32] The appeal is dismissed.