Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Claimant, F. A., isn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal.

Overview

[3] The Claimant is a 56 year-old man who worked in landscaping and driving a truck for a district school board, starting in May 1994. In October 2000 he fell off the truck, hitting his head and fracturing his left humerus (upper arm bone from the shoulder to the elbow). He is claiming chronic left arm and neck pain, upper and lower back pain, headaches, poor sleep, difficulty with focus and concentration as well as anxiety and depression. He had five years of college upgrading. He has not returned to any work since 2000.

[4] The Claimant applied for a CPP disability pension on August 30, 2019. The Minister of Employment and Social Development (Minister) refused his application. The Claimant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Claimant says the evidence does not state he has improved or recovered. He has a disabling psychological condition.

[6] The Minister says the Claimant retained a capacity to work by participation in upgrading for a college diploma. As well, the medical evidence does not support a severe impairment.

What the Claimant must prove

[7] For the Claimant to succeed, he must prove he had a disability that was severe and prolonged by December 31, 2002. This date is based on his contributions to the CPP.^{Footnote 1}

[8] The Canada Pension Plan defines “severe” and “prolonged.”

[9] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[10] This means I have to look at all of the Claimant’s medical conditions together to see what effect they have on his ability to work. I also have to look at his background (including his age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether his disability is severe. If the Claimant is able to regularly do some kind of work that he could earn a living from, then he isn’t entitled to a disability pension.

[11] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 3}

[12] This means the Claimant’s disability can’t have an expected recovery date. The disability must be expected to keep the Claimant out of the workforce for a long time.

[13] The Claimant has to prove he has a severe and prolonged disability. He has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not he is disabled.

Reasons for my decision

[14] I find that the Claimant hasn’t proven he had a severe and prolonged disability by December 31, 2002.

Was the Claimant’s disability severe?

[15] The Claimant’s disability wasn’t severe. I reached this finding by considering several factors. I explain these factors below.

The Claimant’s functional limitations do not affect his ability to work

[16] The Claimant fractured his arm in 2000. He also has depression and chronic pain. However, I can’t focus on the Claimant’s diagnoses.^{Footnote 4} Instead, I must focus on whether he had functional limitations that got in the way of him earning a living.^{Footnote 5} When I do this, I have to look at all of the Claimant’s medical conditions (not just the main one) and think about how they affect his ability to work.^{Footnote 6}

[17] I find that the Claimant didn’t have functional limitations.

What the Claimant says about his functional limitations

[18] The Claimant says that his medical conditions have resulted in functional limitations that affect his ability to work. He says he:

1. i. Has chronic pain which has caused poor sleep.
2. ii. He cannot work at anything because of stress, pain and headaches.
3. iii. He has continued to see his psychiatrist since 2002 because he continues to have depression.
4. iv. He is still receiving cortisone shots because he is still in pain.

What the medical evidence says about the Claimant’s functional limitations

[19] I do not dispute that the Claimant feels he has chronic pain, and that his memory is suffering today. However, the Claimant must provide medical evidence that shows that his functional limitations affected his ability to work by December 31, 2002.^{Footnote 7}

[20] The medical evidence doesn’t support what the Claimant says.

His mental health

[21] The Claimant asked me to put significant weight on the reports of Dr. D’Alessandro, the Claimant’s psychiatrist since 2002. I agree I must consider the treating psychiatrists reports.

[22] In 2002, two years after leaving work, the Claimant developed depression. He saw a psychiatrist, Dr. Milenkovic, once in June 2002, who diagnosed anxiety and depression due to his injury and a relationship breakup in 2001. She (Dr. Milenkovic) initiated medications and wanted to follow him until his condition stabilized.^{Footnote 8} The Claimant did not return and instead began to see Dr. D’Alessandro in November 2002 because he was closer. Dr. D’Alessandro’s notes^{Footnote 9} show that he diagnosed the Claimant with Post-Traumatic Stress Disorder (PTSD) with significant psychosocial problems. The treatment recommended was trazadone, testosterone, and medications for insomnia, supportive psychotherapy and relaxation therapy. The Claimant stated that he trialed a few medications. He is currently on some medications but could not recall the names. He also stated that he never got any psychotherapy.

[23] Dr. D’Alessandro wrote a medical legal report in 2019 outlining the number of times he has seen the Claimant since November 2002. He stated that the Claimant has suffered for many years with chronic major depressive disorder (MDD), PTSD and serious psychosocial problems and has not responded to any treatment. He recommended he try new medications and continue with the Wellbutrin, Cymbalta, Imovane, Melatonin and Tylenol 3 and continue with is psychotherapy. His opinion was that he cannot see him returning to any work in the foreseeable future and remains totally disabled due to the severity and chronicity of his medical a psychiatric conditions. He stated the Claimant was not re-trainable.

[24] I find a few inconsistencies with his opinion. First, the Claimant had already successfully received five years of retraining. This will be outlined later in my decision. Second, the only treatment he has received is medication and he had never received any psychotherapy or counselling for his PTSD or MDD or “significant psychosocial problems”. I acknowledge he received minimal supporting therapy from Dr. D’Alessandro. Third, the Claimant only sporadically saw Dr. D’Alessandro. After November 2002, when presumably he was in a serious state with PTSD and “significant psychosocial problems”, he did not see him again for a full year, and did not consult with any other psychiatrist or psychologist in that time. Then again, after November 2003, he saw him a year later in December 2004. He did not see him at all in 2005 or 2006 or the majority of 2007 until August 2007. After November 2007, there was a missed period of three years until he saw him four times in 2010. He continued to see Dr. D’Alessandro sporadically until August 2019. Dr. D’Alessandro monitored his medications and provided some supportive therapy. He did not provide ongoing, consistent counselling or treatment for PTSD or his significant conditions. Family physician Dr. Petrov deferred to Dr. D’Alessandro to comment on specific medications and treatments, implying that the only physician responsible for the Claimant’s mental health was Dr. D’Alessandro. As the Claimant did not see Dr. D’Alessandro for the years between 2004 and 2007, and between 2007 and 2010, it is reasonable that he did not require any medications or treatment during those periods because Dr. Petrov indicated he had no knowledge of the specific medications or treatment for mental health.

[25] While I agree weight must be placed on the treating specialist’s opinion, I do not find Dr. D’Alessandro was a consistent treating physician and therefore do not put much weight on his opinions.

[26] The Claimant explained that Dr. D’Alessandro takes six months off a year to go to Italy and that is why he did not see him much. If the Claimant were in such a serious mental health state, it would be reasonable that his family physician, or Dr. D’Alessandro would refer him to another psychiatrist, and a psychologist who could treat him on a regular basis.

[27] As well, the Claimant indicated he began to see a psychiatrist in 2019 after he stopped seeing Dr. D’Alessandro, and is currently receiving talk therapy for 20 to 30 minutes. I do not put any weight on this as the therapy, which was recommended by Dr. D’Alessandro in 2002, is finally being sought 17 years later.

[28] The medical evidence does not support a serious mental health condition that required anything further than an occasional, not even an annual, visit from a psychiatrist for medications and minimal supportive therapy.

His physical limitations

[29] The Claimant has asked me to put weight on the reports of family physician Dr. Petrov, specifically a clinical note on January 25, 2016 and the medical report of August 5, 2020.^{Footnote 10} I do put weight on Dr. Petrov’s opinions as he has been the treating family physician prior for many years, both prior and post-accident.

[30] It has already been established that Dr. Petrov was not treating the Claimant for his mental health, as he deferred to Dr. D’Alessandro to comment on the medications and treatment. Dr. Petrov noted he did not recommend the Claimant stop working, and does not know when he will be able to return to work in the future. This is not an opinion on his ability to work in 2002, but in 2020, 18 years later. Dr. Petrov indicated he has a guarded prognosis for a return to any gainful employment, in part because he has not worked in 20 years. I accept this guarded prognosis, but again, it doesn’t speak to his ability to return to work in 2002. As well, I acknowledge that Dr. Petrov did not make a prognosis, even 18 years after his MQP, that the Claimant is unable to return to any employment. He left the possibility open, stating that it depends on his response to treatment and interventions.

[31] Dr. Petrov’s clinical notes indicated that in 2002 he was unable to use his left arm or return to his previous job. He recommended he retrain. In fact, Dr. Petrov told the WSIB he should be retrained in March 2002^{Footnote 11} . This recommendation is significant as it shows a capacity to work.^{Footnote 12}

[32] This opinion is echoed by the orthopaedic surgeon, Dr. Vincent, who allowed that the weakness of the left shoulder would remain, and recommended retraining for a more sedentary job through the WSIB^{Footnote 13} . Dr. Vincent anticipated he would be a good candidate for job retraining, but he would not be able to return to heavy demand work. In July 2003, Dr. Vincent found while he had some rotator cuff disease and ongoing left shoulder pain, he was functioning reasonably well and was encouraged him to continue with his job retraining.

[33] A Functional Abilities Evaluation (FAE) was performed in July 2002 by kinesiologist Shawna Cassidy^{Footnote 14} . She found he was capable of working at a medium strength level on an occasional basis, and he was considering training as a plumber or electrician. She found that when he returns to work it is important he take rests and exercise breaks and receive assistance from co-workers for heavier tasks. Ms. Cassidy is expressing a capacity to work.

[34] In 2002, a Vocational Evaluation was performed by vocational consultants Susan Oliver and Marcel Jean.^{Footnote 15} They found that he would benefit from academic upgrading at post secondary or community college. They also noted that the Claimant would adapt well to new environments and that he was able to learn new skills without difficulty. The opinion of the assessors was that the Claimant should be able to work well independently after training in the essential duties of a job.

[35] The evidence of the treating physician, the treating specialist and the functional and vocational assessors is that the Claimant was not capable of working at a heavy level job, but would be capable of retraining and working at a medium to sedentary level job.

[36] The medical evidence doesn’t show that the Claimant had functional limitations that affected his ability to work at any job by December 31, 2002.

The Claimant attended school for five years

[37] After the recommendations that he retrain, WSIB sent him to school. Initially it was upgrade at Career Essentials. He started in February 2003, and completed with an 87-91% in December 2003^{Footnote 16} .The upgrading was to allow him to get into George Brown College for the Construction Engineering Technician Diploma programme. He was not accepted for the September 2003 school term as he required upgrading in his computer skills.

[38] The programme required substantial computer skills. He was provided upgrading for computer skills until December 19, 2003 to be able to begin George Brown College in January 2004. There is a schooling status report of September 2003^{Footnote 17} which outlines that his efforts at upgrading were not optimal due to a multitude of issues, and that he was seeking treatment from a psychiatrist. He saw Dr. D’Alessandro once in November 2003. The note also indicated that this may be part of a rouse among the students that were using a mental health disorder to explain their lack of success in the program.

[39] Despite his need for a psychiatrist, I have noted he only saw Dr. D’Alessandro once in November 2003, he was accepted into George Brown College in January 2004 after upgrading his computer skills. This is important as the Claimant testified that he was unskilled in computers, making it impossible for him to get a job,^{Footnote 18} and that his wife and all the other students did all the computer course work for him over the years at school.

[40] I do not find this credible. The course required substantial computer skills. He received upgrading and was admitted to the course. As he went through the course for years, he was provided further computer upgrading from June to November 2007^{Footnote 19} . He was provided with a Microsoft Office Project Standard, and Office Home and Student Program and an XP Professional Vista business or ultimate package^{Footnote 20} . He had been provided substantial computer skills and upgrading. As well, he had been accepted in the program, which required substantial computer skills. I find it highly unlikely that his wife and the other students did his work for three years when they had their own jobs or assignments. When questioned how his wife did the exams, he stated that exams don’t count as much. It is commonly accepted that an exam is to test the ability of the student at the completion of the training and is generally worth the majority of the final mark. The Claimant consistently achieve 70-75% marks, which is quite acceptable and shows he was capable of understanding the studies and doing the job.

[41] When he began the training he was told employment for technicians was limited. It was decided he should take one extra year, making the training 3 full years, presumably to give him a better advantage at finding work. There were no school absences reported. He struggled with math and was given a tutor.^{Footnote 21} He took a math course in the summer of 2005 and received 72-74%. He performed well in the math course. ^{Footnote 22} His course work was on schedule^{Footnote 23} . He completed the construction engineering technician diploma in April 2007, then went on to a job search training program from April 30, 2007 to May 25, 2007. This was the projected completion date.

[42] There were a number of jobs the Claimant provided into evidence that he told the WSIB he was not qualified to do because of his computer skills.^{Footnote 24} When I reviewed these job descriptions I found he wouldn’t be qualified as he did not have the years experience for the jobs, and they were mainly management. But, there were at least two jobs that the Claimant was qualified for, a job site superintendent,^{Footnote 25} and a contractor’s estimator,^{Footnote 26} both of which did not require extensive computer skills. He did not apply. He testified he could not go for the superintendent job in 2007 because of his disabilities. There is no evidence to substantiate this claim. He had just received three years of schooling to be able to work at jobs such as the ones noted above. He completed his schooling, five to six hours a day without absences, and with high marks.

[43] At the end of his schooling, in May 2007, he wrote to the case worker that he could not finish school and could not find a job, and that he required further training in computers. He testified that he wrote the letter because WSIB was going to close his file. He also said stress, pain and his headaches worsened at school and he was not able to carry on. At this point, he returned to seeing Dr. D’Alessandro after a three year absence: twice in August and three times in November 2007. He then did not require any treatment for his stress, in that he never saw Dr. D’Alessandro again until March 2010. He did not require any psychiatric or psychological intervention during his five years of schooling other than once in November 2003, once in November 2004, and the above 5 times in 2007. I accept that school would be stressful, however, the evidence does not show his stress or mental health was severe during the years he attended school. He mentioned stress at the end of years of retraining, which would be reasonable, but the evidence has shown he successfully completed upgrading and the college diploma.

[44] The service completion report of November 2007 shows that after his computer training from June 4-November 2, 2007, and a three week vacation, he was provided with the course diploma.

[45] I realize he attended and completed school after his MQP, however it was determined prior to his MQP that he was capable of retraining. He proved he was capable of retraining at the Career Essentials for a year of upgrading, and for two years at George Brown College receiving a Construction Engineering Technician Diploma; and further training in math and computer upgrading.

Overall determination of his capacity to work and functional limitations

[46] The Claimant was successful in completing years of upgrading and a college diploma, with high marks and no absences.

[47] Case law^{Footnote 27} has determined that full time enrollment in school is the same as a capacity to work. Where there is a capacity to work, he must show that he tried to find and keep a job. He must also show his efforts weren’t successful because of his medical conditions.^{Footnote 28} Finding and keeping a job includes retraining or looking for a job that accommodates his functional limitations (in other words, a job with special arrangements).^{Footnote 29} The Claimant had the opportunity to apply for jobs for which he was suited and failed to do so.

[48] The medical evidence doesn’t show that the Claimant had functional limitations that affected his ability to work at any job by December 31, 2002. The evidence also shows that he was capable of retraining. As a result, he hasn’t proven he has a severe disability.

[49] When I am deciding whether a disability is severe, I usually have to consider a claimant’s personal characteristics. This allows me to realistically assess a claimant’s ability to work.^{Footnote 30}

[50] I don’t have to do that here because the Claimant’s functional limitations didn’t affect his ability to work or retrain by December 31, 2002. This means he didn’t prove his disability was severe by then.^{Footnote 31}

Conclusion

[51] I find that the Claimant isn’t eligible for a CPP disability pension because his disability isn’t severe. Because I have found that his disability isn’t severe, I didn’t have to consider whether it is prolonged.

[52] The appeal is dismissed.