Canada Pension Plan (CPP) disability

Decision

[1] The Minister was entitled to terminate the Claimant’s Canada Pension Plan (CPP) disability pension as of July 2013.

Overview

[2] The Claimant was 53 years old when he applied for the CPP disability pension in July 2012.^{Footnote 1} He worked selling and delivering furniture. He stated that he had been unable to work since May 2012 because he had been diagnosed with colon cancer.^{Footnote 2} In the July 2012 CPP medical report, Dr. Bin, oncologist, diagnosed the Claimant with stage three colon cancer. The Claimant was scheduled for surgery and chemotherapy. The prognosis was good. The object of the treatment was to cure his cancer.^{Footnote 3} In August 2012, the Minister allowed his application with payment starting as of May 2012.^{Footnote 4}

[3] The Claimant returned to work in April 2013. In June 2020, the Minister reassessed the Minister’s disability claim. It determined that he had ceased to be disabled in accordance with the CPP as of July 2013. It also determined that he was responsible for an overpayment of $42,163.76. This was because the Claimant had returned to work in April 2013 and had earnings through to 2018.^{Footnote 5}

[4] The Minister denied the Claimant’s request for reconsideration. He appealed to the Social Security Tribunal (Tribunal).

Issue

[5] Do the Claimant’s employment earnings starting in April 2013 establish that he had regained the regular capacity to pursue substantially gainful employment?

Preliminary matter

[6] In its submissions, the Minister acknowledged that it had made an administrative error in December 2017 when it mistakenly concluded that posted T-4 earnings were related to benefits without confirming the source of income. On September 8, 2020, the Minister notified the Claimant about this administrative error and reduced the claimed overpayment by $20,934.33.^{Footnote 6}

[7] After the hearing, I asked the Minister to file all documentation relating to the investigation and/or review in December 2017.^{Footnote 7} The Minister filed the documentation on August 18, 2021.^{Footnote 8}

[8] On August 30, 2021, I requested legal submissions from the parties by October 1, 2021, as to the following:

1. Does the decision of the Federal Court of Appeal in Kinney v Attorney General Canada, 2009 FCA apply to this case?
2. Should the Minister’s December 2017 decision be considered as the last standing decision of the Minister in accordance with the Kinney decision?

[9] Neither party filed legal submissions in response to my request. In view of this, I have decided these issues without the benefit of legal submissions from either party.

[10] The Kinney decision establishes that the Minister can only terminate the pension as far back as the last standing decision confirming eligibility. If it applies to this case, the Minister would not be able to terminate the pension as of a date prior to December 2017.

[11] I have, however, decided that the Kinney decision is not applicable. The 2017 decision dealt only with the Claimant’s T-4 earnings. The Service Canada officer mistakenly decided that the earnings were the result of benefits, not earnings. He did not investigate whether or not the Claimant had regained the capacity to pursue substantially gainful employment. He did not notify the Claimant about his decision. The Claimant was not aware that such a review had been done.

[12] Since the Kinney decision is not applicable, the Minister had the jurisdiction to terminate the Claimant’s pension as of July 2013.

Analysis

[13] A qualifying disability must be severe and prolonged. A disability is severe if it causes a person to be incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration.^{Footnote 9}

[14] In order to terminate a disability pension, the Minister must establish that it is more likely than not that the Claimant ceased to be disabled. A disability pension ceases to be payable for the month in which a Claimant ceases to be disabled.^{Footnote 10}

[15] The Minister relied on the Claimant’s earnings from 2013 to 2018 to establish that he had regained the regular capacity to pursue substantially gainful employment.

[16] The Federal Court of Appeal teaches that the key question in a disability pension appeal is not the nature or name of a condition, but the functional effect of that condition on a claimant’s ability to work.^{Footnote 11} The measure of whether a disability is “severe” is not whether the Claimant suffers from severe impairments, but whether his disability “prevents him from earning a living.”^{Footnote 12} The Claimant’s capacity to work, not the diagnosis of his disease, determines the severity of his disability under the CPP.^{Footnote 13}

[17] Since the Minister terminated the Claimant’s disability pension as of July 2013, I must focus on his capacity to work as of the end of June 2013.

[18] In August 2013, Dr. Stefuarak, neurologist, stated the Claimant was working as a delivery person for a furniture store.^{Footnote 14}

[19] In November 2019, the Claimant told Service Canada that when he initially returned to work, his hours had been cut back. As a result, it was “imperative” that he keep the CPP pension until he could find other gainful employment that would enable him to pay his monthly expenses. In 2017/2018 he exacerbated a back injury. This increased the severity and frequency of his pain. By 2018, his condition had deteriorated to the extent that it became increasing difficult for him to do his work. By November 2018, he had to leave his work. He was looking for other employment.^{Footnote 15}

[20] In a December 2019 disability reassessment questionnaire, the Claimant stated that his chief medical complaint was chronic back pain.^{Footnote 16}

[21] In January 2020, Dr. Pound, family doctor, stated that the Claimant recovered from his colon cancer with some residual fatigue and neuropathy symptoms including dizziness secondary to chemotherapy. He had returned to work part-time at a physically demanding job. Over the subsequent years, this took a toll on his back. As a result, he could no longer do the heavy physical work. Dr. Pound was uncertain as to whether the Claimant could perform a sedentary job.^{Footnote 17}

[22] In February and November 2020 employer questionnaires, the Claimant’s employer stated that he had started working for them in April 2008. He was off work for cancer treatments from May 2012 to April 2013. He stopped working in November 2018 because of a shortage of work and his deteriorating back problems. His work duties included picking up and delivering furniture. He was paid $15 to $20 an hour. He earned $300 to $400 a week. He worked 15 to 20 hours a week, when work was available. His attendance was good. He was always on time and very reliable.^{Footnote 18}

[23] The Claimant earned substantial gainful amounts from 2013 to 2018.^{Footnote 19} His earnings and the applicable substantially gainful amounts were:^{Footnote 20}

[24] By the end of June 2013, the Claimant had returned to work for his pre-disability employer for three months. Although his employment was part-time and based on the availability of work, his earnings were substantially gainful. He continued working for that employer for more than five years. He suffered increasing back pain and by November 2018 was no longer able to continue his physically demanding work. His earnings were substantially gainful. Despite his back pain, he was a regular and reliable employee.

[25] I find that the Minister has established that it is more likely than not that the Claimant ceased to be disabled by the end of June 2013. The Minister was entitled to terminate his disability pension as of July 2013.

[26] I am sympathetic to the Claimant’s situation. He commendably returned to work after undergoing difficult treatment for a serious illness. Based on the medical evidence, it would appear that he may have been severely disabled since November 2018. He is now faced with having to repay about $41,000.

[27] However, the CPP provisions bind me. I have no authority to make exceptions to the provisions of the CPP nor can I render decisions based on fairness, compassion, or extenuating circumstances.

Possible next steps for the Claimant

[28] My decision relates only to the Minister’s termination of the Claimant’s entitlement to the CPP disability pension as of July 2013. It does not decide whether he became disabled again afterwards. He may choose to make a new application for the CPP disability pension.

[29] He may also choose to apply to the Minister for cancellation of all or a portion of the amount owing under section 66(3) of the CPP on the basis of financial hardship.

Conclusion

[30] The appeal is dismissed.