Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

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

Overview

[3] The Appellant was 41 years old as of December 31, 2020. He worked as a carpenter until May 2018. He stopped working on May 29, 2018 because he was injured in a motorcycle accident resulting in a broken arm, wrist, and hand, two broken vertebrae, and nerve damage in his legs. He has been unable to return to carpentry work due to his pain and functional limitations. He has not returned to any other work.

[4] The Appellant applied for a CPP disability pension on December 10, 2018. The Minister of Employment and Social Development (Minister) refused his application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The General Division held a hearing and wrote a decision dated August 12, 2021. This decision was appealed to the Social Security Tribunal’s Appeal Division. The Appeals Division referred the matter back to the General Division for a new hearing with a different Member.

[6] The Appellant says that he has a severe and prolonged disability. He submits that the medical evidence overwhelmingly supports his eligibility for CPP disability benefits. The Appellant has a long work history and would work if he could. The Appellant has worked with several treatment providers and occupational therapists in an effort to return to work in any capacity. These efforts have failed despite his effort. He has never refused treatment. His long term disability insurer and accident benefits insurer have found him eligible for ongoing benefits because of his inability to return to work. Their test is similar to the test for CPP disability benefits.

[7] The Minister says that, while it is acknowledged that he cannot return to his usual work due to his medical condition, the medical evidence does not show any serious pathology of impairment which would result in him being categorized as disabled and unemployable in all occupations. He is young. His level of education and transferrable skills provide the basic educational and occupational competencies to allow for direct entry into the workforce in a similarly skilled job or one that requires training. He has no barriers to learning new skills.

What the Appellant must prove

[8] For the Appellant to succeed, he must prove he had a disability that was severe and prolonged by December 31, 2020. This date is based on his contributions to the CPP.^{Footnote 1}

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

[10] A disability is severe if it makes an appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[11] This means I have to look at all of the Appellant’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 Appellant 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.

[12] 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}

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

[14] The Appellant 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

[15] I find that the Appellant hasn’t proven he had a severe and prolonged disability by December 31, 2020.

Was the Appellant’s disability severe?

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

The Appellant’s functional limitations affect his ability to do carpentry work.

[17] The Appellant has multiple diagnoses, including:

• Fractures at L2 and L3;
• Chronic mechanical low back pain;
• Comminuted intra-articular left distal radius fracture;
• Left distal radio-ulnar joint instability;
• Left carpal tunnel syndrome;
• Left wrist post-traumatic arthritis;
• Left hand contracture/stiffness;
• Bilateral hip lateral femoral cutaneous nerve dysfunction;
• Anxiety; and
• Depression.

[18] However, I can’t focus on the Appellant’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 Appellant’s medical conditions (not just the main one) and think about how they affected ability to work.^{Footnote 6}

[19] I find that the Appellant has functional limitations that affected his ability to work.

What the Appellant says about his functional limitations

[20] The Appellant says that his medical conditions have resulted in functional limitations that affect his ability to work. He says that he was healthy and hardworking before his motorcycle accident in May 2018.

[21] He had been working consistently since 1999, mainly in carpentry. Most recently, he worked as a carpenter from December 12, 2017 until May 29, 2018. He worked full-time (8 hours per day, 5 days per week). His duties included building concrete forms, roofing, doors and hardware.

[22] He was able to do this job until May 29, 2018. He was riding his motorcycle home from work that day when he was seriously injured in an accident. He has had numerous health problems since then. He has not returned to work as a carpenter or to any other job.

[23] He described the injuries that prevent him from working. He suffered a concussion in the accident. This caused sensitivity to light. He has memory problems. For example, he sometimes leaves the hose on when feeding animals and he forgets appointments. He has ringing in his ears.

[24] He injured his left arm. He is unable to use his left wrist. His thumb is not stable. The tendons over his muscles “drift” to the side. They will lock and cramp up. He cannot lift anything heavier than 5 lbs using his left hand.

[25] He has lower back pain due to fractured vertebrae at L4-L5. This caused nerve damage down his legs. He gets shooting pain from his back down his right lower extremity. Driving longer than 45 minutes will aggravate this. His legs are also hyper-sensitive to touch, hot and cold.

[26] In addition to his physical health problems, he also has depression. All of his health problems have been present since the accident and worsened over time.

[27] He has had multiple surgeries over the years. He uses medical cannabis for his pain. This helps numb his lower back pain. It also makes him feel more functional, which sometimes causes him to overdo it.

[28] He was asked about reports in the file that discuss the farm work he was doing. He explained that he had 10 chickens that would lay about 5 eggs per day. They have 5 pet goats. They have some pigs. His wife has two horses. In the mornings, he would go out to make sure they had water. He would scoop feed into their feeders. He uses a little tractor if he needs to move anything. His kids are very helpful. They do the loading and filling buckets. He stated that he does not earn any money from the farm.

[29] He was asked about his beer and syrup making hobbies. He stated that he has not done this in years. It involved a lot of lifting big jugs. It became too much for him.

[30] He does not think he can return to work. He says that four doctors have told him he cannot work. He does not feel capable of retraining for lighter work. Sitting in a chair for longer than 30 minutes causes him pain. He also can’t stand in one place for too long or he will have pain. It also feels like there are bugs screaming in his ears. He gets nauseous if he has to read and store the information in his head. He cannot fathom the thought of doing sedentary work.

[31] He also feels that he would be unable to commit to a schedule. There are days that he does not get out of bed in the morning because his head hurts or he has pain in his back and legs. Weather increases his pain. He is focused on self-care. He believes that is all he can handle.

[32] The Appellant and his family moved to Prince Edward Island in August 2021. He explained that he had been renting a rural farmhouse in Ontario. However, due to the pandemic and rising housing prices, he was evicted by the owner of the property so that his daughter could move in. The Appellant had to find another property within his budget. He realized they could not afford anything in Ontario. They therefore moved to Prince Edward Island.

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

[33] The Appellant must provide some medical evidence that supports that his functional limitations affected his ability to work by December 31, 2020.^{Footnote 7}

[34] The medical evidence supports what the Appellant says. The CPP Medical Report was completed on December 19, 2018 by Dr. Braden Gammon, orthopedic surgeon. Dr. Gammon reported that the Appellant has a comminuted left distal radius fracture with DRUJ instability. His symptoms began on May 29, 2018. He is unable to use his left hand and wrist for work. He has decreased grip strength, decreased range of motion, and constant pain. Dr. Gammon recommended that he stop working in December 2018. However, he did expect him to return to another type of work that will require retraining. He will be unable to lift more than 5-10 lbs, use machinery, perform prolonged repetitive activities, or be exposed to cold/vibration long term for the left wrist/hand. He will need to retrain from a job as carpenter to sedentary work to avoid using the left hand/wrist.

[35] On July 8, 2019, Dr. Gammon wrote that a CT showed post-traumatic osteoarthritis in his left wrist. This makes reconstruction of his normal anatomy impossible and a salvage procedure the only reasonable option. It was explained to the Appellant that he would be unable to return to a position involving manual labour or the sustained use of his left arm. On February 25, 2019, he underwent a surgicacl procedure. He is currently improving with ongoing hand therapy, occupational therapy and physiotherapy. He will have a permanent disability from his injury and residual deficits. He will be unable to lift over 1-2 lbs, perform repetitive activities, or tolerate exposure to extreme temperatures or vibrations. He is a good candidate for retraining to a sedentary position that does not involve left arm use.

[36] On September 17, 2019, Dr. Gammon wrote that he has a complete and irrevocable loss of use of his left hand/wrist/forearm. This relates to permanent stiffness in his fingers precluding pinch and grip, as well as chronic wrist and forearm pain related to post-traumatic arthritis and residual ulnar stump instability. He avoids all use of his left arm because of pain, instability and grip/pinch limitations.

[37] The reports from Dr. Gammon support that the Appellant was unable to return to work as a carpenter as of December 31, 2020. However, Dr. Gammon felt that he would be a good candidate for retraining to a sedentary position that does not involve the use of his left arm. It is evident from these reports that the Appellant was capable of attempting alternate lighter or sedentary work that did not involve lifting more than 1-2 lbs, performing repetitive activities or exposure to extreme temperatures or vibrations.

[38] Dr. Mark Coates, Neuropsychologist, reported on September 17, 2019 that he is taking medical cannabis at night, but no other medications for mood or anxiety. His current profile suggests the presence of moderate cognitive inefficiency, particularly when task demands are high. While memory encoding and retention appear to be relatively intact, he has difficulty learning new information if it is presented in an unstructured manner or too quickly. The current findings are consistent with the residual effects of a concussion. He endorsed moderate driving anxiety, but continues to drive despite his distress. He meets the criteria for an adjustment disorder with mixed anxiety and depressed mood. It was recommended that he work with an occupational therapist, vocational therapist, and obtain psychological treatment. Although I acknowledge that he has limitations, these would not prevent the Appellant from pursuing alternative work within his limitations or retraining for alternative work.

[39] Dr. Ang Li, orthopedic surgeon, took over for Dr. Gammon. Dr. Li reported on December 2, 2020 that the Appellant continues to have significant pain at his left wrist along with permanent stiffness in his wrist and left fingers precluded pinch and grip. He also has paresthesia of the middle, ring and small fingers. CT of the left wrist showed severe post-traumatic osteoarthritis. He has a severe disability with regard to his left wrist, finger, and forearm. He is unable to use his left arm. I noted that this report is dated at around the time of the MQP. It supports that the Appellant is unable to do work that involves using his left arm. However, he would not be precluded from attempting alternative work within his limitations.

[40] Dr. Many Mehdiratta, neurologist, reported on July 8, 2020 that he has symptoms of neck and lower back pain, cognitive symptoms, intermittent dizziness, and reduced balance. He has sustained a mild traumatic brain injury and cerebral concussion. He was noted to have problems with his memory and concentration as well as mood and sleep disturbance. Since the accident, he has been unable to return to his employment due to ongoing limitations including left arm weakness and pain, back pain, concentration and memory difficulties, and problems rotating the left arm. He is no longer competitively employable in his pre-collision role. Dr. Mehdiratta expected him to have a shortened working life by at least 10-15 years given the severity of his symptoms and the presence of a structural brain injury. It is evident from this report that, although the Appellant is unable to return to his previous occupation, he is capable of returning to alternative work within his limitations, albeit with a shortened working life.

[41] On November 6, 2020, Barbara Maroney, occupational therapist, reported that he is able to drive to town to complete errands, use his right upper extremity, and sit for 60 minutes before changing positions. Walking is not limited. However, his standing tolerance is 15 minutes and he is unable to use his left upper extremity for reaching tasks. He avoids climbing stairs when his pain is elevated. He is very strong and capable of using his right upper extremity for many lifting and carrying tasks, including household chores, farm chores, unloading 40 kg bags of feed from his truck, and carrying the feed to the barn. He prepares his own meals and lunches for his children. He does the grocery shopping. He is able to cut the grass, but this aggravates his symptoms and takes him longer to complete due to frequent rests. He maintains an above ground pool. He completes morning farm chores, which include transporting feed and water to the feeding stations located around his property, manually filling water buckets, and scooping feed by hand into the feed buckets. He transfers the buckets into a “carry all” on the back of his tractor and drives the buckets of feed and water to the feeding stations. Each buckets weighs approximately 20 lbs. He moves the turkey and chicken coops daily using a tractor. In 2019, he began making his own beer as a hobby. He also makes maple syrup in the spring.

[42] In the situational assessment, Ms. Maroney identified the following vocational options for him: construction manager, production logistics coordinator, construction estimator, inspectors in public and environmental health and occupational health and safety, all of which would require retraining. She also outlined a typical day since his motorcycle accident as follows:

• He wakes up at around 6-6:30 a.m., has coffee with his wife, gets dressed, and leaves the house between 8-8:30 a.m. to complete his morning farm chores.
• His morning farm chores include feeding and watering the chickens, geese, turkeys, ducks, and goats. He finishes his chores at around 11:00 a.m.
• He then goes to town to complete errands for home and the farm, such as picking up feed. He does this two mornings per week.
• He will rest for 60-90 minutes, then prepare lunch for his children at 12:30.
• His afternoon is spent supervising his children until his wife gets home at 5:00 p.m. They will prepare dinner together and eat between 6-6:30 p.m.
• His evening is quiet and spent resting. He consumes medical marijuana to reduce his pain and help him sleep. He goes to bed at 10-10:30 pm.

Ms. Maroney noted that he was observed to unload four 40 kg bags of feed, two 25 mg bags of feed, and a 50 lb bag of stone. His cognitive screening was normal.

[43] These reports indicates that, although the Appellant had functional limitations related to using his left upper extremity, prolonged standing, and stair climbing when he is in pain, he remained capable of doing chores on the farm using his right upper extremity, including lifting and stacking heavy bags of feed and buckets of feed and water.

[44] On November 6, 2020, Dr. Christopher Gallimore, orthopedic surgeon, reported that he is able to walk independently, but sometimes finds it difficult to move his right leg due to back pain. He is independent in self-care. He does cooking and light cleaning around the house. He cuts the lawn, but it takes him longer. He is able to drive a tractor for snow removal. If he sits for one hour, he gets severe back pain. He has loss of function to his left upper extremity. He is unable to pinch and grip. He sustained a permanent loss of function in his left upper extremity. He should be deemed catastrophic based on criterion 2 (severe impairment of ambulatory mobility or use of arm, or amputation). This report also supports that he has functional limitations, but remains capable of alternative work within his limitations.

[45] On November 6, 2020, Dr. Zohar Waisman, psychiatrist, reported that he has a pain disorder associated with a general medical condition and psychological factors and a major depressive disorder, moderate.

[46] In an integrated catastrophic impairment analysis – executive summary report, dated November 6, 2020, Dr. Darren Milne wrote that he has the following diagnoses: lumbar spine (L2 and L3) fractures, chronic mechanical low back pain, comminuted intra-articular left distal radius fracture, left distal radio-ulnar joint instability, left carpal tunnel syndrome, left wrist post-traumatic arthritis, left hand stiffness, and bilateral hip lateral femoral cutaneous nerve dysfunction. His pain, fatigue, fear of exacerbating his pain/causing further injury, low mood, and reduced self-confidence in his ability to perform tasks are impacting his activities of daily living. He meets criteria 2, 6, 7, and 8.

[47] All of the medical reports dated prior to December 31, 2020 support that, although the Appellant has functional limitations that would prevent him from returning to carpentry work or to any work involving the use of his left upper extremity, he remained capable of attempting alternative work within his limitations or retraining for alternative work.

[48] On January 6, 2021, less than a week after the MQP, Ruth Nicholson, occupational therapist, reported that he displayed the following functional limitations: inability to use his left arm and hand for daily functional abilities, limited postural tolerance for sitting and standing, static standing brings on increased lower back and lower extremity symptoms after 15 minutes, walks at a reduced pace, he reports being unable to perform heavy activities around his house, moderate difficulty with stairs, and increased effort to get dressed. He was noted to complain of headaches, dizziness, sleep disturbance, and sensitivity in his left arm to touch, cold, and heat. Although he requires assistance with heavy yard work around his farm, he was observed feeding his animals using his right side (ducks, chickens, hens, and two goats). This involved filling buckets, carrying hay, and pulling a wagon. He has difficulty with focus and concentration. He required a break after one hour of working outside. He would have functional physical, emotional, and cognitive difficulties that would impact his ability to return to any type of substantially gainful employment in the foreseeable future.

[49] Ms. Nicholson also completed a CPP Medical Report dated January 15, 2021. She listed his functional limitations as follows: reduced walking, gait and endurance, reduced standing tolerances, limited ability to climb stairs, decreased sitting tolerance, inability to perform heavy tasks, difficulty focusing, and anxiety related to driving. From a functional standpoint, he would have difficulty returning to any type of work with respect to his physical, behavioural, and emotional abilities.

[50] Although Ms. Nicholson noted functional limitations that would impact the types of work the Appellant could do, the limitations noted would not preclude him from attempting alternative work within his limitations.

[51] The medical evidence supports that the Appellant’s inability to use his left upper extremity and other functional limitations would prevent him from returning to work as a carpenter. However, he was capable of attempting alternative work within his limitations or retraining for alternative work.

[52] This is evident from Dr. Gammon`s reports, which noted that he should retrain for sedentary work. This is also evident from Dr. Mehdiratta’s report, which supported that he can return to alternative work, but is likely to have a shortened working life. Similarly, Ms. Maroney provided details of all the farm chores the Appellant was doing at home at around the time of the MQP. She stated that he was strong and capable of using his right upper extremity for lifting and carrying tasks. She also listed a number of jobs he could retrain to do. I therefore find that there is evidence of work capacity.

[53] I now have to decide whether the Appellant can regularly do other types of work. To be severe, the Appellant’s functional limitations must prevent him from earning a living at any type of work, not just his usual job.^{Footnote 8}

The Appellant can work in the real world

[54] When I am deciding whether the Appellant 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

[55] These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that he can work.^{Footnote 9}

[56] I find that the Appellant can work in the real world. In this case, the Appellant was 41 years old as of December 31, 2020. He has a high school diploma. He also received training as a carpenter. He has worked in various carpentry jobs since 1999, including his most recent job building concrete forms, roofing, and installing doors and hardware.

[57] The Minister acknowledged, and I accept, that the Appellant was unable to return to his carpentry work as of December 31, 2020. However, the Appellant remained capable of attempting lighter work within his limitations.

The Appellant didn’t to find and keep a suitable job

[58] If the Appellant can work in the real world, 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 10} Finding and keeping a job includes retraining or looking for a job he can do with his functional limitations.^{Footnote 11}

[59] The Appellant didn’t make any effort to find another job or retrain. Therefore, I can’t find he had a severe disability by December 31, 2020.

Conclusion

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

[61] This means the appeal is dismissed.