Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Claimant, D. M., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of March 2018. This decision explains why I am allowing the appeal.

Overview

[3] The Claimant is 62 years old. He has a Grade 11 education. He worked physically intensive jobs. He worked full-time at various foundries as a furnace operator. His last job was in construction. He worked full-time laying foundations for high rises and bridges.

[4] In 1989, he injured his back at work while trying to unhook an air compressor from the back of a pickup truck. He stopped working around June 1991 due to back and left leg pain from the injury.

[5] The Claimant applied for a CPP disability pension on February 11, 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.

[6] The Claimant argues that he had a severe and prolonged disability by December 31, 1995.

[7] The Minister argues that the medical evidence doesn’t show the Claimant was incapable regularly of pursuing any substantially gainful occupation. In support of its position, the Minister cites the lack of surgical intervention and the Claimant’s retraining from 2002 to 2004.

What the Claimant must prove

[8] For the Claimant to succeed, he must prove he had a disability that was severe and prolonged by his minimum qualification period (MQP) date of December 31, 1995.^{Footnote 1} This date is based on his contributions to the CPP.

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

[10] A disability was severe if it made a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

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

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

[13] 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.

[14] The Claimant has to prove he had 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 was disabled.

Reasons for my decision

[15] I find that the Claimant had a severe and prolonged disability by December 31, 1995.

The Claimant’s disability was severe

[16] I find that the Claimant’s disability was severe. I base this on several factors. I explain these factors below.

– The Claimant testified that he has functional limitations

[17] The Claimant had lumbar (lower back) degenerative disc disease. However, I can’t focus on the Claimant’s diagnosis.^{Footnote 4} Instead, I must focus on whether he had resulting 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 affected his ability to work.^{Footnote 6}

[18] I find the Claimant’s testimony sincere.

[19] At the hearing, the Claimant explained that he had functional limitations that affected his ability to work in the following ways:

• He had back pain that shot down to his left leg.
• He felt stiffness in his ankles.
• He had difficulty standing or sitting.
• He wasn’t able to walk far; he had difficulty walking less than a block to his mailbox.
• He wasn’t able to reach or bend down.
• He had difficulty getting in and out of a car.
• He had trouble sleeping because of pain.
• He wasn’t able to do household tasks like washing dishes, sweeping, vacuuming, or mowing the lawn.

[20] The Claimant testified that these functional limitations are ongoing.

[21] The Claimant testified that his physical condition worsened due to coronary artery disease, which was diagnosed after December 31, 1995, and a heart attack in 2015.

– The medical evidence supports the Claimant’s testimony.

[22] The Claimant must provide medical evidence that his functional limitations affected his ability to work by December 31, 1995.^{Footnote 7}

[23] I find that the Claimant had functional limitations and that they affected his ability to work by December 31, 1995.

[24] The medical evidence support the Claimant’s testimony.

[25] I won’t consider functional limitations from the Claimant’s coronary artery disease and heart attack. This is because they were diagnosed or occurred after his MQP date of December 31, 1995. This appeal must focus on the disabilities he had by that date.^{Footnote 8} New medical conditions that arose after aren’t relevant to this appeal.

[26] On June 22, 1993, Dr. DeVilliers, a neurosurgeon, reported on the Claimant’s back and left leg pain from his 1989 workplace injury.^{Footnote 9}

[27] On November 18, 1994, Dr. Profetto, the Claimant’s family doctor, noted worsening of the Claimant’s back and leg pain.^{Footnote 10} Dr. Profetto also said that the Claimant wasn’t able to return to regular work or work that involved lifting, pulling, and repetitive bending.

[28] On April 19, 2019, Dr. Profetto said that the Claimant had the following functional limitations:^{Footnote 11}

• Inability to lift, push, pull, and do repetitive work
• Difficulty doing house chores
• Inability to walk long distances
• Difficulties tolerating pain

[29] I find Dr. Profetto’s April 19, 2019, report relevant and give it weight for two reasons. First, it is consistent with Dr. Profetto’s earlier report on November 18, 1994. Second, the onset of the symptoms was backdated to August 1985, well before the MQP date of December 31, 1995.

– The Claimant has followed medical advice

[30] To receive a disability pension, a claimant must follow medical advice.^{Footnote 12} If a claimant doesn’t follow medical advice, then they must have a reasonable explanation for not doing so. I must also consider what effect, if any, the medical advice might have had on the claimant’s disability.^{Footnote 13}

[31] I find that the Claimant followed medical advice. At the hearing, he said that he complied with the following treatments:

• He attended physiotherapy three times a week from 1992 to at least 1993.^{Footnote 14} He was also in physiotherapy around December 31, 1995. Physiotherapy didn’t help with the pain and often caused the pain to flair up.
• He was prescribed Tylenol, morphine, and Celebrex for his pain. He takes his medication to manage his pain, and it provides some temporary relief. He continues to take morphine on a regular basis because there are days when he can’t get out of bed due to pain.
• He uses a brace as well as heat and ice wraps to manage his pain. He also uses a cane as support whenever he tries to walk. These treatments provide minor temporary relief.
• He underwent a one-week pain management program shortly after his injury in 1989.^{Footnote 15} The program gave him tips to live with pain but was overall unhelpful in reducing pain.

[32] Although the Claimant gets some relief from medication and assistive devices, I find that his disabilities haven’t resolved with treatment.

[33] I disagree with the Minister on the importance of surgical intervention in this appeal for two reasons.

[34] First, the absence of surgery is only one factor. It doesn’t mean the disability isn’t severe.

[35] Second, to undergo or refuse surgery is the Claimant’s decision. His decision should not stop him from qualifying for a CPP disability pension if it is based on reasonable grounds.^{Footnote 16}

[36] I find that he has reasonable grounds for why he didn’t undergo surgery. At the hearing, he said that he discussed spinal surgery with Dr. DeVilliers and Dr. Drew, an orthopedic surgeon. He didn’t want the surgery after he was advised of significant risks, such as not being able to walk again.

[37] Dr. DeVilliers was also against surgery. On June 22, 1993, he reported that he wasn’t keen to offer the Claimant surgery.^{Footnote 17}

– The Claimant can’t work in the real world

[38] For a disability to be severe, the Claimant’s functional limitations must prevent him from earning a living at any type of work, not just his usual job.^{Footnote 18}

[39] When I am deciding whether the Claimant can work, I can’t just look at his medical conditions and how they affect what he can do. I must also consider factors such as his:

• age
• level of education
• language abilities
• past work and life experience

[40] These factors help me decide whether the Claimant can work in the real world and whether it is realistic to say that he can work.^{Footnote 19}

[41] I find that the Claimant can’t work in the real world. I base this on the following factors:

• Although he was only 36 years old at his MQP date and had no communication issues, these two factors don’t overcome other personal circumstances that show a lack of work capacity.
• He didn’t finish high school and didn’t complete any post-secondary education.
• Although he worked in different industries such as smelting and construction, he had limited transferable skills outside of physical labour.
• He had limited ability for physical labour. He had significant pain in his back and left leg. He wasn’t able to lift, push, pull, or do repetitive work.

[42] The Claimant’s inability to work in the real world is also supported by his inability to return to work and find other suitable work:

• He could not return to his construction job. He testified that he could not perform the same tasks that he did before his injury. He had trouble getting out of the car to start work. He physically could not carry tools to the job site. He could not stand for prolonged periods of time. He was afraid of falling whenever he climbed a ladder while carrying things. His colleagues had to help him do his assigned tasks.
• He was denied accommodation and part-time work at his construction job. He testified that he asked his supervisor for light duties in the workshop. His supervisor denied his request and told him they didn’t have light duties in construction. He testified that his request for part-time work was also denied because his supervisor saw his colleagues helping him and told the Claimant that the company didn’t want him at work.
• He made unsuccessful attempts to find other suitable work after June 1991. He testified that he applied for less physically intensive jobs at repairs shops and parts counters in stores. He had several interviews, but the employers didn’t call him back after he told them he had a back condition and could not lift.

[43] I disagree with the Minister’s argument that the Claimant’s retraining from 2002 to 2004 shows that he can work in the real world. On the contrary, the significant difficulties that he experienced due to his disability and personal circumstances while attending courses shows that he can’t work in the real world. I base this on his testimony, his wife’s testimony, and documents from the courses:

• His pain made it difficult to attend courses. The Claimant’s witness, his wife, said that he often missed class when he could not get out of bed due to pain. The Claimant said that this happened every month and could last from days to weeks.
• His pain made it difficult to sit through courses. He said that, when he was able to attend, he could not sit still and had to get up and move around to keep the pain at bay.
• He said that side effects from medication made it hard for him to focus.
• He didn’t understand the content of some courses. One of his courses was on computers. He said that the content was very hard to grasp because he didn’t learn about computers in primary and secondary school.
• His basic academic abilities were assessed as part of the courses. He showed very limited academic abilities, including weak phonics and spelling skills and difficulty using complex sentence structures to disclose necessary details.^{Footnote 20} His reading, writing, and math skills were all assessed as below a Grade 8 level.^{Footnote 21}
• He wasn’t able to complete the courses. He said that the program funder, Worker Compensation, stopped them after a year. He wasn’t told why.

[44] When considered together with his functional limitations, these factors show that the Claimant can’t work in the real world despite his efforts to return to work, find other suitable work, and go back to school to retrain.

[45] Therefore, I find that the Claimant’s disability was severe by December 31, 1995.

The Claimant’s disability was prolonged

[46] I find that the Claimant’s disability was prolonged.

[47] The Claimant’s disability became severe when he stopped working in June 1991. His disability has continued since then, and it will more than likely continue indefinitely.^{Footnote 22}

[48] In finding that the Claimant’s disability was prolonged, I gave significant weight to his testimony and the medical opinion of his long-time family doctor, Dr. Profetto.

[49] The Claimant testified that his medical condition hasn’t improved since June 1991. He said that it has worsened over the years.

[50] The Claimant said that his back pain has gotten significantly worse. He now has more difficulty getting in and out of the shower. He sometimes falls in the shower or in the washroom and ends up urinating himself.

[51] The Claimant said that it is harder to do daily tasks. He can’t walk as far as before and is losing his limited ability to help around the house.

[52] I find the Claimant’s testimony sincere and consistent with the following medical evidence from Dr. Profetto:

• Progress notes from 1995 to 2011 show a consistent pattern of back and leg pain.^{Footnote 23}
• The April 10, 2019, report stated that the Claimant hadn’t been capable of any type of work over the years.^{Footnote 24}
• He described the Claimant’s back pain as chronic on November 6, 2019.^{Footnote 25}
• He reiterated this opinion on January 24, 2020, when he described the Claimant’s overall pain as severe and prolonged.^{Footnote 26}

[53] It would have been ideal to have more medical evidence for the period from 2011 to 2019. However, I am satisfied that the Claimant has proven, through his credible testimony and supporting medical evidence from Dr. Profetto, that his disability is more likely than not prolonged.

[54] Therefore, I find that the Claimant’s disability was prolonged by December 31, 1995.

When payments start

[55] The Claimant had a severe and prolonged disability in June 1991.

[56] However, the Canada Pension Plan says that a claimant can’t be considered disabled more than 15 months before the Minister receives their CPP disability pension application. After that, there is a four-month waiting period before payments start.^{Footnote 27}

[57] The Minister received the Claimant’s application in February 2019. That means that he is considered to have become disabled in November 2017.

[58] Payment of his CPP disability pension starts as of March 2018.

Conclusion

[59] I find that the Claimant is eligible for a CPP disability pension because his disability was severe and prolonged.

[60] This means the appeal is allowed.