Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Appellant, 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 Appellant 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 Appellant applied for a CPP disability pension on November 12, 2019. 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 allowed appeal. The Minister appealed this decision to the Social Security Tribunal’s Appeal Division. The Appeal Division allowed the appeal and returned the matter to the General Division for reconsideration. The General Division held another hearing on September 26, 2022.

[6] The Appellant says that he has a severe and prolonged disability and that the medical evidence supports this. He has been disabled since 2016. He has osteoarthritis in both knees. His knees are completely shot. He uses a walker or cane to ambulate. He relies on his wife to drive. He is unlikely to improve. His condition is only getting worse. He has only worked in physically demanding jobs. He does not have any transferrable skills. He could not be retrained because he struggles to focus, has low reading capacity, and is computer illiterate.

[7] 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 Appellant must prove

[8] For the Appellant 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}

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

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

Was the Appellant’s disability severe?

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

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

[17] The Appellant has osteoarthritis in both knees. However, I can’t focus on the Appellant’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 Appellant’s medical conditions (not just the main one) and think about how they affect his ability to work.^{Footnote 6}

[18] I find that the Appellant has functional limitations that affect his ability to work.

What the Appellant says about his functional limitations

[19] The Appellant 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 a construction company doing construction work. His duties included cement and metal work, framing, drilling, and grinding. He had to use a jackhammer. He had to walk up and down hills carrying lumber. He enjoyed this job, but struggled more and more over time.

[20] The Appellant was struggling with pain and swelling in his knees. He wanted to continue working and would find ways to get through the work day. This included taking pain medication and getting cortisone shots. He bought a large pair of jeans so that he could wear knee pads under his jeans with another pair of knee pads on top. After work, he spent the rest of his night soaking and elevating his feet. His knee problems worsened in 2016.

[21] He says that he had to stop working in June 2016 because his knees were “done”. His knees were swollen and painful. He could not walk very far or do much of anything. He struggled to bend. He was taking extra pain pills at night to help him sleep. He still woke up a lot at night due to pain. His wife had to help him out of bed because it was hard to get out.

[22] He went to see his doctor for an assessment. He was given knee injections. His doctor told him he had to stop working. His doctor also wrote to his employer to say that he could no longer work. When the Appellant questioned his doctor, they argued about his ability to work. His doctor yelled at him, saying that he needs to understand that he is done working. The Appellant has been told by all of the doctors he has consulted that he is unable to work.

[23] His condition continued to worsen after he stopped working. As of December 2017, he had constant knee pain. His knees were always swollen. He was using a cane to walk. He spent most of his time sitting on the couch. He had to frequently get up to walk around because his knees lock up with sitting. He had grab bars installed in his bathroom and used shower mats and a shower chair. His wife did most of the driving. His health has not gotten any better over time despite treatment.

[24] In addition to his knee problems, he also has severe sleep apnea. He has shortness of breath. He has gained weight due to his lack of mobility. He had two strokes in 2009 and 2010.

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

[25] The Appellant must provide some medical evidence that supports that his functional limitations affected his ability to work by December 31, 2017.^{Footnote 7}

[26] The medical evidence supports what the Appellant 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.

[27] 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 do heavy construction work. Once he is able to secure a job with lighter duties, he can pursue right total knee arthroplasty.

[28] Dr. Cayen reported again on December 13, 2016 that the Appellant will require right total knee arthroplasty. However, given his young age, he will outlive a primary knee replacement and will likely need a revision in the future. As such, a non-lifting job was suggested post-operatively. Dr. Cayen also noted that the Appellant has a history of left-sided strokes in the past and has been left with some upper extremity weakness.

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

[30] There are several reports on file from Dr. Jack Sussman, family physician. These include the following:

• In an insurance form completed on December 15, 2015, it is noted that he has severe osteoarthritis in his right knee with significant knee pain. His restrictions include walking on uneven surfaces, standing, and walking. No restrictions were listed for sitting and driving. He will need permanent lighter duties. He will definitely need a total knee replacement, but will need light work only afterward.
• In a report dated March 6, 2016, Dr. Sussman summarizes his understanding of Dr. Cayen’s advice. More specifically, Dr. Sussman writes that the Appellant was referred to an orthopedic surgeon who felt he would benefit from a total knee surgery, but felt that if he continued to attempt to do his usual physical job, it would fail prematurely. He was advised to try and seek lighter duties, which he was unable to do.
• On March 6, 2018, just a few months after the MQP, Dr. Sussman wrote that the Appellant 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 Appellant was unable to arrange lighter duties. Dr. Sussman feels that he is completely disabled form his previous heavy work.

[31] Dr. Roderick Martin, orthopedic surgeon, reported after the MQP on December 16, 2019 that the Appellant 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 a total knee arthroplasty on the right side.

[32] The medical evidence supports that the Appellant’s bilateral knee osteoarthritis (right greater than left) prevented him from doing physically-demanding work, including construction work by December 31, 2017.

[33] Next, I will look at whether the Appellant has followed medical advice.

The Appellant has followed medical advice

[34] To receive a disability pension, an appellant must follow medical advice.^{Footnote 8} If an appellant 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 appellant’s disability.^{Footnote 9}

[35] In this case, the Appellant has undergone numerous treatments in an effort to improve his health. He has tried various pain medications, including Tylenol 3 and Lenoltec. He uses A-535 ointment. He saw a physiotherapist, who advised him that physiotherapy would not help. He also tried acupuncture. He has had the fluid drained from his knees on numerous occasions. He has had cortisone injections in both knees that helps him get around a little better. He has tried numerous different knee braces, as recommended by his doctors, which he wears regularly for support.

[36] Total right knee replacement was recommended. This surgery had been booked for an earlier date, but was cancelled. There is some discrepancy regarding who cancelled the surgery. The Appellant denies that he cancelled the surgery, stating that it was cancelled by his doctor due to the COVID-19 pandemic. In my view, it does not matter why the surgery was delayed because Dr. Cayen’s initial recommendation was that the Appellant should continue with conservative treatment. Dr. Cayen was worried that, given his young age, he would outlive a knee replacement and require revision in the future. I therefore do not accept that a delay in receiving a total knee replacement indicates that the Appellant has not been compliant with treatment recommendations.

[37] Nonetheless, the Appellant underwent right knee surgery in May 2022. He stayed in the hospital for six days. He was discharged with a walker, which he still uses. He says his right knee has not healed properly. He continues to have a lot of pain and it still cracks and crunches. His doctor thinks he may require another surgery on the right knee. He is waiting to see if the right knee surgery will be successful before he pursues surgery on the left knee.

[38] The Appellant has followed medical advice.^{Footnote 10}

[39] 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 11}

The Appellant can’t work in the real world

[40] 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

[41] 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 12}

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

[43] The Appellant is precluded from performing the types of jobs he has done in the past due to his significant mobility restrictions. This is acknowledged by the Minister, who wrote that the Minister is not arguing the fact that he is unable to do physical work as he did in his previous job. However, it is submitted that this does not mean that he would be unable to do another type of work and there is no evidence that he ever attempted a different type of work.

[44] The Minister pointed to several reports that it submits are evidence of work capacity. These were also noted by the Social Security Tribunal Appeal Division decision, which stated that these documents were important enough that they need to be discussed. I will therefore address each of these documents specifically in these reasons to explain why I do not consider them to be evidence of work capacity.

[45] The first documents mentioned were the reports from Dr. Sussman and Dr. Cayen. On December 1, 2015, Dr. Cayen suggested that right total knee arthroplasty can be discussed once the Appellant is able to secure lighter duties. It is evident from the Appellant’s testimony that he did not secure lighter duties at that time and continued to work in his regular job. It is also evident from the Appellant’s testimony that his condition worsened after the date of the report such that he had to stop working altogether in June 2016.

[46] The next report from Dr. Cayen is dated December 13, 2016, which is after the Appellant stopped working. This report states that the Appellant will require right total knee arthroplasty. However, given his young age, he will outlive a primary knee replacement and will likely need a revision in the future. As such, a non-lifting job was suggested post-operatively. It is important to note that Dr. Cayen does not state that the Appellant is capable of doing lighter duties as of the date of this report. Rather, Dr. Cayen states that he should not have the surgery until he can secure lighter duties post-operatively. Furthermore, the Appellant’s condition continued to worsen after the date of this report. Therefore, I do not accept that Dr. Cayen’s reports are evidence of work capacity.

[47] Similarly, I do not accept that Dr. Sussman’s reports dated December 15, 2015, June 27, 2016, and March 6, 2018 are evidence of work capacity as of December 31, 2017.

[48] Dr. Sussman completed an insurance form on December 15, 2015. He is noted to have severe osteoarthritis in his right knee with significant knee pain. His restrictions include walking on uneven surfaces, standing, and walking. No restrictions are noted for sitting and driving. He will need permanent lighter duties. He will definitely need a total knee replacement, but will need light work only afterwards. It is evident from the Appellant’s testimony and the remaining medical reports on file that the Appellant’s condition worsened significantly after the date of this report.

[49] In his report dated March 6, 2016, Dr. Sussman makes it clear that he is summarizing his understanding of Dr. Cayen’s advice. More specifically, Dr. Sussman writes that the Appellant was referred to an orthopedic surgeon who felt he would benefit from a total knee surgery, but felt that if he continued to attempt to do his usual physical job, it would fail prematurely. He was advised to try and seek lighter duties, which he was unable to do. Dr. Sussman does not state that the Appellant is capable of returning to lighter duties. He simply provided a summary of his understanding of Dr. Cayen’s advice.

[50] In the report dated June 27, 2016, Dr. Sussman wrote that that the Appellant has been off work due to increasing knee pain. Dr. Sussman wrote that the Appellant was referred to an orthopedic surgeon who felt he would be a candidate for right total knee arthroplasty, but if he continued to do the heavy physical work that he now does, that the procedure would be a failure. Dr. Sussman told the Appellant on December 15, 2015 that he would need permanent lighter duties and then he would be a candidate for a total knee procedure. He was seen again on June 1, 2016. No light duties were available. He was using a brace and a cane to ambulate. He would benefit from lighter duties if these can be arranged for him. Although it is noted that he would benefit from lighter duties, it is evident from the Appellant’s testimony and the remaining reports on file that the Appellant’s health worsened after the date of this report.

[51] For these reasons, I do not consider Dr. Sussman’s reports to be evidence of work capacity as of December 31, 2017.

[52] I will now consider the Functional Abilities Evaluation dated October 5, 2016. In this report, Mr. Brown and Mr. Sze wrote that, overall, he demonstrated strength tolerances in the Sedentary-Light category of strength. I put very little weight on this report because the Appellant’s condition worsened after the date of this report. This is evident the Appellant’s testimony that, as of December 31, 2017, he had a very limited ability to walk and required the use of a cane. He could not sit for long periods of time without getting up to move around because his knees would lock up. His wife did most of the driving. This shows a deterioration in his functional abilities after the date of this report. This is confirmed by Dr. Lee, who wrote that his disabling symptoms have progressively worsened since onset.

[53] Next, I will consider the Ontario Limitations to Participation Form, which was completed on May 16, 2018 by Dr. Sussman. Dr. Sussman wrote that the Appellant has limitations with respect to lifting, walking, bending, and standing. It is confirmed that the Appellant has very limited ability to ambulate and is using a cane. As pointed out by the Appeals Division, Dr. Sussman does not check off limitations regarding sitting, ability to concentrate, energy/stamina, fine motor skills, operating machinery, and driving.

[54] With respect to sitting, the Appellant acknowledged in his testimony that he spent most of the day sitting on the couch because it was so difficult for him to stand and walk. However, he also testified that his knees would become painful and lock up, requiring him to get up and move around. With respect to driving, the Appellant was still able to drive short distances. However, his wife did most of the driving because it was difficult for him to drive given his knee problems and could even be a safety concern if his knees locked up.

[55] It should be noted that even the Functional Abilities Evaluation report listed time intervals of 20-45 minutes of sitting before the Appellant had to stand. Also, the insurer’s 12 month review dated February 14, 2017 noted that his pain is aggravated by prolonged sitting.

[56] Therefore, I do not accept that Dr. Sussman’s failure to check off limitations regarding the Appellant’s ability to sit or drive is evidence of work capacity. When the evidence, as a whole, is considered, it is clear that the Appellant’s knees become painful and may lock up when he sits for too long and that he only drives short distances because of his knees.

[57] Finally, I will consider the insurance documents, which include the following:

• A telephone call log dated July 28, 2017 summarizing key points discussed with the Appellant. These include the Appellant stating that he drove a truck before. He stated that he cannot drive standard. At the hearing, the Appellant denied that he was ever a truck driver and did not list truck driving when asked about his work history. However, even if he did have truck driving experience, I accept his testimony that, as of December 2017, his knees lock while driving and that he can only drive short distances. I also note that the Appellant has well-documented limitations with stair climbing. It is therefore reasonable to expect that he would also struggle to climb up into and down from a truck. This does not appear to be a job he can do and his insurer did not pursue this option for him beyond this telephone call. Therefore, I do not consider this to be evidence of work capacity.
• A labour market survey dated May 17, 2016 sets out the job requirements of a dispatcher, which include operating a computer.
• An insurer letter dated January 5, 2017 stated that it has been determined that the Appellant should be capable of working at another job, such as a dispatcher.
• An insurer 12-month review dated February 14, 2017 stated that he is only able to walk 1-2 blocks even with a cane and a brace. He has made no improvements. He is able to stand for less than 20 minutes and can only walk 10 minutes at a time. He has problems going up and down stairs. He would benefit from lighter duties. It is noted that his pain is aggravated by walking, stair climbing, and prolonged sitting and standing. The functional abilities evaluation from October 2016 is again referenced to show that he is in the sedentary to light category. As previously stated, his condition worsened after the date of this report. Furthermore, the insurer noted that dispatcher may not be a strong alternate job for him because it requires basic computer skills and the Appellant’s computer skills are unknown. The insurer goes on to state that if he appeals the insurer decision, he should be sent for another functional abilities evaluation. The insurer expresses doubt about the Appellant’s ability to work as a dispatcher given that his computer skills are unknown. The Appellant testified at the hearing that he does not have any computer skills. Therefore, I do not accept that the insurer’s finding that he could work as a dispatcher is evidence of work capacity.
• Insurer Portfolio Assessment and Management Plan dated July 28, 2017 indicates that the Appellant has forklift and skyjack certificates. Dispatcher is listed as an alternate job for the Appellant. It is noted that no education is required and he can be trained on the job. His ability to do this job seems to be based on the Functional Abilities Evaluation report from October 2016, which found that he is capable of sedentary to light work. However, as previously stated, the Appellant’s condition worsened after the date of this report. Also, as previously stated, the Appellant does not have the computer skills for this job. Therefore, I do not accept this document to be evidence of work capacity.

[58] As of December 31, 2017, the Appellant’s condition had worsened since the Functional Abilities Evaluation finding that he was capable of light or sedentary work. I note that he has never held a sedentary or even light job. Given his age, education, work experience, and computer skills, he would be unlikely to obtain a sedentary job or light job even without considering his medical condition. He would require retraining to do sedentary or light work, which is unrealistic given his significant mobility issues and difficulty with prolonged sitting. I find that the Appellant 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.

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

Was the Appellant’s disability prolonged?

[60] The Appellant’s disability was prolonged.

[61] The Appellant’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}

[62] 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 underwent a right knee surgery, which, so far, has been unsuccessful. He may require a second surgery on the right. He is waiting to see if there is improvement in his right knee before proceeding with surgery on the left.

[63] The Appellant has already undergone right knee surgery without benefit to date. He may require a second surgery on the right knee. The outcome of these surgeries is unknown at this point. However, Dr. Igibnidu’s opinion is that his disabling condition is unlikely to improve within a reasonable period of time such that a successful return to work will be possible.

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

[65] Dr. Igbinidu’s opinion and the Appellant’s testimony show that his disability has been long continued and is of an indefinite duration. I therefore find that the Appellant’s disability was prolonged by December 31, 2017.

When payments start

[66] The Appellant had a severe and prolonged disability in December 2017, when the Appellant testified his mobility was significantly restricted due to pain and swelling in his knees.

[67] However, the Canada Pension Plan says an appellant can’t be considered disabled more than 15 months before the Minister receives their disability pension application.^{Footnote 14} After that, there is a 4-month waiting period before payments start.^{Footnote 15}

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

[69] Payments of his pension start as of December 2018.

Conclusion

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

[71] This means the appeal is allowed.