Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

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

Overview

[3] The Claimant was 51 years old as of December 31, 2017. He worked as a construction worker until June 2016. He stopped working due to osteoarthritis in his knees, causing pain, swelling, and mobility issues. He has not returned to any type of work since then.

[4] The Claimant applied for a CPP disability pension on November 12, 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 that he has a severe and prolonged disability.  The medical evidence shows that he has had an ongoing medical disability. Given his medical condition as well as his education, training, and skills, no real world employer would hire him. Even if he found a job, he would be unable to do it on a consistent basis. He has been prevented from any gainful occupation since 2016.

[6] The Minister says he has not established that he has a severe and prolonged disability on or prior to December 31, 2017 and continuously thereafter. There is evidence of work capacity. The Minister is not arguing the fact that he is unable to do the physical work he did in his previous job. However, this does not mean he would be unable to do another type of work. There is no evidence that he has ever attempted a different type of work.

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, 2017. 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 had a severe and prolonged disability by December 31, 2017. I reached this decision by considering the following issues:

• Was the Claimant’s disability severe?
• Was the Claimant’s disability prolonged?

Was the Claimant’s disability severe?

[15] The Claimant’s disability was severe. I reached this finding by considering several factors. I explain these factors below.

The Claimant’s functional limitations do affect his ability to work

[16] The Claimant has osteoarthritis in both knees. However, I can’t focus on the Claimant’s diagnosis.^{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 has functional limitations.

What the Claimant says about his functional limitations

[18] The Claimant says that his medical condition has resulted in functional limitations that affect his ability to work. He has been working in physically-demanding jobs all of his life. Most recently, he worked full-time from January 2013 to June 2016 at X doing construction work. His duties included cement work, drilling holes, grinding work, and framing work. He had to use a jackhammer. He had to walk up and down hills carrying lumber.

[19] His knee problems began in approximately 2013. He was in a lot of pain. His knees would swell up. He would wear large jeans to work so that he could wrap his knees in bandages. His symptoms got worse and worse over time. He stopped working in June 2016 due to osteoarthritis in his knees.

[20] As of December 2017, his knees have been “shot”. He has been struggling to walk. He uses a cane. He relies on his wife to drive.

[21] All of his doctors have told him that he cannot return to work. He talked to his family physician, Dr. Sussman, about lighter jobs. However, Dr. Sussman would not clear him to return to work. He contacted his employer about lighter jobs, but they did not want anything to do with him.

[22] In addition to his knee pain, he has hip pain from walking with his bad knees. He also has three hernias. He has severe sleep apnea and shortness of breath. He has gained weight due to his mobility issues. He has shortness of breath.

[23] All of the doctors he has consulted have told him that his knees are done. His doctors have told him that he cannot return to work. He requires total knee replacements on both sides.

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

[24] The Claimant must provide medical evidence that shows that his functional limitations affected his ability to work by December 31, 2017.^{Footnote 7}

[25] The medical evidence supports what the Claimant says. The CPP Medical Report was completed on October 23, 2019 by Dr. Ewaen Igbinidu, family physician. The Claimant has osteoarthritis in both knees resulting in severe restriction in knee movement and walking. He has a limited ability to walk. He has other comorbidities like obesity that complicate his condition.

[26] On December 1, 2015, Dr. Barry Cayen, orthopedic surgeon, wrote that the Claimant has a numerous year history of right greater than left knee pain. Non-operative treatment was recommended for his right knee while he continues to work as a heavy construction work. Once he is able to secure a job with lighter duties, he can pursue right total knee arthroplasty.

[27] In a Functional Abilities Evaluation Report dated October 5, 2016, Steve Brown, physiotherapist, and Alan Sze, kinesiologist, wrote that the Claimant demonstrated strength tolerances in the sedentary-light category of strength. I note that the Claimant does not have experience in sedentary or light work. I also note that his condition deteriorated after the date of this report.

[28] On December 13, 2016, Dr. Cayen wrote that the Claimant wants to go ahead with a right total knee arthroplasty. A non-lifting job was suggested postoperatively. The Claimant’s condition deteriorated significantly after the date of this report.

[29] Dr. Jack Sussman wrote on March 6, 2018, just after the MQP, that the Claimant has severe right knee pain which has been progressive for the past few years. He has osteoarthritis in both knees, but it is more severe in the right. Dr. Cayen felt that a total knee arthroplasty would fail prematurely if he continued to do his usual physical job. The Claimant was unable to arrange lighter duties. Dr. Sussman feels that he is completely disabled from his previous heavy work.

[30] Dr. Roderick Martin, orthopedic surgeon, reported after the MQP on December 16, 2019 that he has bilateral knee osteoarthritis. He was also noted to have suffered a stroke in 2009. He has hypertension, vascular disease, obstructive sleep apnea, and angina. He was booked for total knee arthroplasty on the right side. The Claimant testified that he still does not have a date for this surgery, in part due to delays caused by the COVID-19 pandemic.

[31] The medical evidence supports that the Claimant’s bilateral knee osteoarthritis prevented him from doing physically-demanding work, including construction work by December 31, 2017.

[32] Next, I will look at whether the Claimant followed medical advice.

The Claimant has followed medical advice

[33] The Claimant has followed medical advice.

[34] To receive a disability pension, a claimant must follow medical advice.^{Footnote 8} If a claimant doesn’t follow medical advice, then he must have a reasonable explanation for not doing so. I must also consider what effect, if any, the medical advice might have had on his disability.^{Footnote 9}

[35] In this case, the Claimant has undergone numerous treatments in an effort to improve his health. He has tried physiotherapy. He has tried various pain medications (Tylenol, NSAID), which he continues to take. He uses A-535 on his knees. He has had the fluid in his knees drained on numerous occasions. He receives cortisone injections in both knees, which allows him to get around a little better. He often heats his clothes in the oven. He is trying to pursue right total knee arthroplasty, but has been unable to obtain a date for this procedure due to the COVID-19 pandemic.

The Claimant has followed medical advice.^{Footnote 10}

[36] I now have to decide whether the Claimant can regularly do other types of work. 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 11}

The Claimant can’t work in the real world

[37] 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

[38] These factors help me decide whether the Claimant can work in the real world—in other words, whether it is realistic to say that he can work.^{Footnote 12}

[39] I find that the Claimant can’t work in the real world. He was 51 years old as of December 31, 2017. He has a grade 11 education. He has only worked in physically-demanding jobs, including construction work and spray painting. He has never held a light or sedentary job.

[40] The Claimant is precluded from performing the types of jobs he has done in the past, or even jobs with light physical duties, due to his significant mobility restrictions. He has never held a sedentary job and, given his age, education, and work experience, would be unlikely to obtain a sedentary job even without considering his medical condition. He would require retraining to do sedentary work, which is unrealistic given his mobility issues and difficulty with prolonged sitting. I find that the Claimant was not employable in a real world context as of December 31, 2017. I also find that there is no evidence of work capacity as of December 31, 2017.

[41] I find that the Claimant’s disability was severe by December 31, 2017.

Was the Claimant’s disability prolonged?

[42] The Claimant’s disability was prolonged.

[43] The Claimant’s condition began in 2013 and worsened over time. This condition has continued since then, and it will more than likely continue indefinitely.^{Footnote 13}

[44] Dr. Igbinidu stated that his condition is likely to deteriorate. Dr. Lee wrote that it is unlikely his disabling condition will improve within a reasonable period of time such that a successful return to work will be possible. His disabling symptoms have progressively worsened since onset and are expected to be indefinite. He was referred to an orthopedic surgeon for knee replacement. However, treatment is not expected to offer further recovery such that working capacity will be significantly improved.

[45] I also accept the Claimant’s oral testimony that he suffers from ongoing knee pain and functional limitations that have worsened over time.

[46] I find that the Claimant’s disability was prolonged by December 31, 2017.

When payments start

[47] The Claimant’s disability became severe and prolonged in December 2017, when the Claimant testified his mobility was significantly restricted due to pain and swelling in his knees.

[48] 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 14}

[49] The Minister received the Claimant’s application in November 2019. That means is considered to have become disabled in August 2018.

[50] Payment of his pension starts as of December 2018.

Conclusion

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

[52] This means the appeal is allowed.