Canada Pension Plan (CPP) disability

Decision

[1] I’m allowing the appeal. The General Division made an error of law. I’ll give the decision that the General Division should have given: the Claimant is entitled to a Canada Pension Plan (CPP) disability pension. Payments start November 2018.

Overview

[2] S. K. (Claimant) attended high school in India. Punjabi is her first language. She moved to Canada in 2008. She knows some English that she learned at school and at work in Canada.

[3] The Claimant worked in a fast-food restaurant from August 2009 to July 2018. She stopped working because of her back pain. She found it difficult to work more than three shifts in a week. Her shifts were not longer than four hours.

[4] The Claimant applied for a CPP disability pension on October 11, 2019. The Minister of Employment and Social Development (Minister) refused her application initially and on reconsideration. The Claimant appealed to this Tribunal. The General Division found that the Claimant’s back pain stopped her from doing chores around the house, driving, and her usual job by end of her coverage period (minimum qualifying period, or MQP). However, the Claimant didn’t follow medical advice, and therefore she was not entitled to a disability pension.

[5] I gave the Claimant an extension of time to appeal. I found that there was an arguable case that the General Division made an error of law.

[6] Now I must decide whether the General Division made an error under the Department of Employment and Social Development Act, and if there was an error, what I will do to fix it.^{Footnote 1}

Issues

[7] The issues in this appeal are:

1. a) Did the General Division fail to provide the Claimant with a fair process by providing deficient language interpretation at the hearing?
2. b) Did the General Division make an error of law by making a finding about the expected impact of treatment on the Claimant’s disability status without having any evidence to support the finding?
3. c) If the General Division did make an error, what should I do to fix the error?

Analysis

[8] First, I’ll explain what the Appeal Division’s role is in reviewing General Division decisions. Next, I’ll explain how I’ve concluded the following:

• The General Division provided a fair process.
• The General Division made an error of law by making a finding about the expected impact of treatment on the Claimant’s disability status.

[9] Finally, I’ll fix (remedy) the error by giving the decision that the General Division should have given: the Claimant is eligible for a disability pension.

The first issue: General Division provided a fair process.

[10] The General Division did provide a fair process to the Claimant. The General Division relied on a language interpreter during the hearing for the Claimant. The interpretation did not proceed entirely smoothly, but the process was still fair.

[11] The Claimant’s son was her representative during the General Division hearing. He gave testimony in English and understands Punjabi. He didn’t object to the quality of the language interpretation either during the hearing or in the application to appeal the decision.

[12] However, before the Appeal Division hearing, the Claimant’s son explained that the language interpretation at the General Division hearing was lacking. He explained that the interpretation was basic. He focused mostly on the idea that the interpreter didn’t fully interpret the Claimant’s testimony from Punjabi to English.

[13] A different language interpreter supported the Tribunal at the Appeal Division hearing. The Claimant and her son testified about their experience during the General Division hearing.^{Footnote 2} In his testimony, the Claimant’s son criticized the quality of the interpretation from Punjabi to English. However, he didn’t go as far as to say that it made the entire hearing unfair, nor did the Claimant.

[14] I listened to the General Division hearing. I do not speak or understand any Punjabi, so I can’t independently verify whether the translation of the Claimant’s evidence was complete. However, I noticed that the Claimant’s son was trying to translate some phrases for his mother at times.

[15] The Claimant’s son stated during the Appeal Division hearing that although the interpretation was not good, he was less sure that it made the whole hearing unfair.

[16] The Minister argued that the interpretation did not impact that fairness of the hearing. The Minister noted that, in any event, the Claimant needed to provide notice of the problem sooner to allege a breach of natural justice.

[17] I find that the General Division provided a fair process. Language interpretation was important to the fairness of the process for the Claimant. While the interpretation was not perfect, I cannot conclude the problems impacted the fairness of the process overall in any way that would require fixing. The Claimant’s son could not point me to any part of the testimony where the interpretation impacted the meaning the General Division took from testimony. The concern that the interpretation overall was “basic” was not one that I can address meaningfully without more information.

The second issue: The General Division made an error of law by reaching a finding of fact about the Claimant’s treatment that was unsupported by evidence.

[18] The General Division made an error of law.

[19] The General Division decided that the Claimant was not eligible for a disability pension because she didn’t follow medical advice and didn’t give a reasonable explanation for failing to follow the advice.^{Footnote 3}

[20] The General Division reached the following conclusions about the cortisone treatments for the Claimant’s shoulders:^{Footnote 4}

• Following the medical advice about cortisone injections for her shoulders “may improve her pain symptoms in her shoulders”
• The medical advice “might have made a difference to the [Claimant’s] disability.”
• However, the General Division acknowledged that it had “no medical to show how effective cortisone injections are for the [Claimant]. She hasn’t started treatments yet. There is a possibility that treatment through injections will make a difference in her disability.”

[21] In my view, the General Division made an error of law. The Federal Court of Appeal has made clear that treatment is important, and that claimants cannot refuse treatment unreasonably. However, the decision maker must consider what impact the treatment might have on the Claimant’s disability status.^{Footnote 5}

[22] The Minister argues that I cannot intervene in the General Division’s findings. The way the General Division applies settled law to the facts is not an error that I can address in my decision.^{Footnote 6} I am not trying to reweigh the evidence to decide that the refusal was reasonable or that the impact was different simply because I don’t agree with the findings.

[23] In this case, the General Division expressly made a finding about the impact of the treatment without evidence, which in this case is an error of law.^{Footnote 7}

[24] The General Division decided that the cortisone injections might have improved the pain symptoms in the Claimant’s shoulders, and therefore affect her disability. However, the General Division also stated it had no evidence about how much the pain would reduce, and therefore what impact it would have on the Claimant’s disability status.

[25] A finding without evidence that the Claimant’s pain may have decreased is not, in my view, what the court meant by considering the impact on the Claimant’s disability status. The Claimant may well have had a reduction in pain that would still not change her disability status: she may still have a severe disability under the CPP. She may still have been incapable regularly of pursuing any substantially gainful occupation.

[26] In my view, the General Division cannot simply infer that the Claimant’s overall disability status was expected to change because of cortisone injections to her shoulders.

[27] Even if I am wrong about this, and the General Division’s inference wasn’t an error of law, there is an additional legal error arising from the General Division’s discussion of the Claimant’s cortisone shots. The doctor recommended the cortisone shots for the Claimant’s shoulder after the end of the coverage period. The Federal Court of Appeal is clear that if a claimant unreasonably refuses treatment, they may not be entitled to the disability pension (their disability is not severe). The focus in the legislation is for the claimant to prove a severe and prolonged disability on or before the end of the coverage period. Accordingly, the focus of treatment efforts should also be during the coverage period.^{Footnote 8}

The third issue: fixing the error by giving the decision that the General Division should have given.

[28] Once I find that the General Division made an error, I have a choice about how to fix the error. I can give the decision that the General Division should have given, or I can return the matter to the General Division for reconsideration.^{Footnote 9} I can decide any question of law necessary for deciding an appeal.^{Footnote 10}

[29] The Minister and the Claimant didn’t object to me giving the decision that the General Division should have given. This is an efficient way to move forward in many cases.

[30] I will give the decision that the General Division should have given. I listened to the General Division hearing recording and reviewed the documents in the case. I have the information that I need to decide whether the Claimant is eligible for a disability pension. Giving the decision that the General Division should have given is fair, fast, and just in the circumstances.

The Claimant has a severe disability.

[31] To be eligible for a disability pension, the Claimant must have a severe disability within the meaning of the CPP. A person with a severe disability is “incapable regularly of pursuing any substantially gainful occupation.”^{Footnote 11}

[32] Each piece of that definition has meaning. A severe disability in the CPP context is connected to what a person can and cannot do (when it comes to work). The things people cannot do because of a disability are sometimes called “functional limitations.”

[33] In my view, the Claimant proved that she had a severe and prolonged disability within the meaning of the CPP. Her disability was severe and prolonged when she stopped working in July 2018. Her coverage period ended on December 31, 2020.^{Footnote 12}

[34] I considered each of the following:

• The Claimant’s medical conditions (which involves assessing the conditions in their totality – all the possible impairments that could affect capacity to work)^{Footnote 13}
• The Claimant’s background (including age, education level, language proficiency, past work and life experiences)^{Footnote 14}
• The steps the Claimant took to manage the medical conditions, and whether the Claimant unreasonably refused any treatment.^{Footnote 15}

[35] Considering these three factors, I find that the Claimant does not have even some (or a residual) capacity for work. She has functional limitations that preclude pursuing any substantially gainful work. She has some additional personal circumstances that result in challenges or barriers to employment. She has taken steps to manage her conditions, and she has not refused treatment unreasonably. Since I found that she does not have capacity for work, she does not have to show that her efforts to get and keep work were unsuccessful because of her medical conditions.

The Claimant’s medical condition is chronic back pain.

[36] The Claimant’s medical condition is chronic back pain.

[37] In the Medical Report for the CPP, the Claimant’s doctor explained that she has chronic back pain that started in 2012. He stated that the pain has become progressively worse, and that she has subjective symptoms of inability to perform any activity. The doctor listed functional limitations like unable to perform housework, reporting functional limitations in all activities due to pain, family members helping her in all household activities.

[38] The MRI on April 27, 2018 showed multilevel degenerative changes.^{Footnote 16}

[39] The doctor confirmed that the prognosis was likely to remain the same, was expected to last more than a year, and was continuous. The same doctor first began treating the Claimant in January 2018, and he stated that he started treating the Claimant’s primary medical condition in 2019. At that time, he recommended that the Claimant stop working but he noted that she had been off work for a long time and her doctor had moved so she started to see him.

The Claimant’s chronic back pain results in functional limitations affecting the Claimant’s ability to work.

[40] When the Claimant applied for the disability pension, she rated her ability to complete many routine tasks to be “poor”, including:

• remain on her feet for 20 minutes
• go up and down 12-15 steps
• sit for at least 20 minutes
• transfer from a bed, chair toilet or car
• pull or push a heavy door
• pick up two bags of groceries and walk a block
• complete housekeeping or home maintenance.^{Footnote 17}

[41] In the same document, the Claimant rated her ability most days to take care of her hygiene and personal grooming like dressing and feeding as “fair.”

[42] The General Division found that the Claimant had the following limitations and that the medical evidence supports what the Claimant says:

• Her feet and knees hurt after standing for 20 minutes. She has must sit down for five to seven minutes before she can get up again.
• She sleeps for five to six hours at night. Her pain disrupts her sleep. She can only lay on her left side for 5 to 10 minutes before she needs to shift sides.
• She doesn’t have to sleep during the day, but she often has to lie down because of her pain. She spends most of the day in bed.
• She can’t lift her arms above her shoulders because of her shoulder pain. This makes it hard for her to do things like brush her hair. She needs help wiping the counters. Her daughter does the dishes. Her son has to mop.
• She can sit or drive for 10 to 15 minutes. This causes pain in her lower back and shoulders. She doesn’t drive long distances.^{Footnote 18}

[43] The General Division decided that those functional limitations supported that the Claimant’s chronic back pain prevented her from doing chores around the house, driving, and her usual job by December 31, 2020.^{Footnote 19}

[44] I adopt the General Division’s findings on the Claimant’s functional limitations. I accept the evidence from the Claimant when she applied for the disability pension about her functional abilities. In my view, based on the same medical evidence and testimony, along with her personal circumstances, the Claimant’s disability was severe. She is incapable regularly of pursuing any substantially gainful work.

The Claimant’s background

[45] When deciding whether the Claimant has functional limitations that affect her ability to work, I need to consider how employable the Claimant is in the real world, given her:

• age
• level of education
• ability to speak, read, and write English
• past work and life experience.^{Footnote 20}

[46] The Claimant was only 45 years of age when she stopped working in 2018. Her age isn’t a barrier to returning to work and she has many years before the standard retirement age in Canada.

[47] However, the Claimant’s education and ability in English are barriers to employability in Canada. The Claimant has a high school education from India.^{Footnote 21} She testified (and I accept) that she learned some English while in school. When she worked in the fast-food restaurant, she communicated with her colleagues in Punjabi, and she did not have contact with any customers. She says she picked up some English from co-workers.

[48] The Claimant has no work experience in India. Her Canadian work experience is a back of house job in a fast-food restaurant. She does not use a computer or tablet at home. She has not ever worked on a cash register or a computer at work.

[49] To gain work that is less physical than she has done at the fast-food restaurant, the Claimant may need to upgrade her English skills and then possibly retrain. Her work experience cleaning the floors and the tables and washing dishes at the fast-food restaurant is unlikely to translate to a job with fewer physical requirements. In my view, communication in English may be necessary for many jobs that are less physical in nature.

[50] The Claimant’s personal circumstances, in particular her lack of English skills and her lack of work experience or skills that would transfer to a less physical job are real barriers to her real-world employability. And some of the same physical limitations that keep the Claimant from doing physical work are also a barrier to English language training, retraining, and sedentary work. For example, sitting or driving for more than 10 to 15 minutes without experiencing pain in lower back.

[51] To show that she’s eligible for the disability pension, the Claimant also needs to show that she’s taken steps to manage her back pain, and that she hasn’t refused treatment unreasonably.

The Claimant took steps to manage her back pain during her coverage period. When she refused treatment, she acted reasonably.

[52] The Claimant has taken steps to manage her conditions and she has not refused any medical advice unreasonably.

[53] Claimants have an obligation to show efforts to manage their medical conditions.^{Footnote 22} There is no specific requirement that the evidence be from a claimant’s doctor, although doctors often include this kind of information in their reports. There is no express requirement that the efforts be substantial, extensive, or otherwise exhaustive.

[54] In Sharma, the Federal Court of Appeal appears to agree with the way the Appeal Division referred to the test as “reasonable efforts” and a “reasonable explanation” for not following medical advice.^{Footnote 23}

[55] It is important that the bar is set at “reasonable efforts” and a “reasonable explanation” because not all claimants who are incapable regularly of pursuing any substantially gainful occupation will have tried every treatment associated with their conditions more generally. They need only to make reasonable efforts.

[56] The Claimant is obese and has diabetes. There are references in her medical records to her weight loss.^{Footnote 24} I am satisfied that she makes sufficient effort to lose weight. The reconsideration letter from the Minister acknowledges those efforts.^{Footnote 25}

[57] The Claimant testified that she tries to do exercises and stretching but finds it too painful.^{Footnote 26} In light of all the evidence about the Claimant’s pain, lack of sleep and mobility, in my view, this is a reasonable explanation for failing to complete more exercise and stretching.

[58] The Claimant takes her medications as prescribed. She explains that this is why she did not visit the doctor regularly in 2019 – she was following the recommendations of her doctor.

[59] The General Division found that the Claimant unreasonably refused treatment because she refused to consider a surgical consultation in June 2019.^{Footnote 27} The Claimant said that she didn’t want to consider surgery because she was told that her pain could get worse with surgery. I accept the Claimant’s explanation as reasonable. The Claimant’s concern was with pain. Without information that suggested that the surgery would be likely to improve that, she didn’t pursue that path. In any event, after the end of the coverage period, it was clear that a surgeon who the Claimant consulted didn’t recommend back surgery. Instead, he was exploring the possibility of cortisone injections to manage the Claimant’s pain.

[60] That surgeon noted in 2022 that in addition to her back pain, the Claimant was also experiencing neck and shoulder pain. He recommended right reduction and a trial of cortisone injections for her shoulder. Although he stated that she was “not ready to accept injections at this point.” He stated that although at that point she was not functionally able to work, she is “very young and can have further treatment.”^{Footnote 28}

[61] At the time of the General Division hearing, the Claimant had not yet had cortisone injections for her shoulder. Her son testified that she was scared but that they would basically force her.^{Footnote 29} The Claimant has a fear of needles and the evidence also suggested that she was worried because a family member had similar injections and they didn’t help. In my view, the Claimant’s fear of needles is reasonable. It’s not ideal, and it’s something that may be (or even already has) been overcome. Fears are often inherently unreasonable from a purely objective standpoint. However, it is not unreasonable for a claimant to be wary of injections for back pain.

[62] Even if this explanation was unreasonable, I do not have sufficient information about the impact that cortisone injections for her shoulders was expected to have on the Claimant’s disability status. For the disability pension, the focus is on ability to work and the Claimant’s conditions during the coverage period. In this case, the medical condition during the coverage period was chronic back pain, not shoulder pain.

[63] Given the pain the Claimant testified about, I will not infer that the doctor’s recommendation for cortisone injections in her shoulders (years after the end of the coverage period) meant that the doctor thought that they might allow her to return to work.

[64] The Claimant takes her medication, sees doctors, has tried stretching and exercise, has lost some weight, and was afraid of cortisone injections in her shoulders. I am satisfied that she has participated in her own treatment, and that where she has failed to follow a recommendation, she has been reasonable.

The Claimant doesn’t have capacity for work, so she doesn’t need to show that efforts to get and keep work failed because of her disability.

[65] In my view, there is no evidence of capacity for work that would trigger the need for me to consider whether the Claimant’s work efforts failed because of her disability.

[66] The Claimant’s medical reports are quite clear about the range of functional limitations that the Claimant has. The pain in her back limits her ability to walk and to stand, but also to sit. She cannot reach. Her day-to-day life shows that her day is taken up with trying to cope with her pain. She does some cooking and her family assists in the house with all the other chores.

[67] Clearly, she cannot return to work in a fast-food restaurant, which would exceed her ability to walk, stand, sit and transfer between these tasks.  But her need to change positions regularly and her restrictions in terms of sitting mean that she is also not able to participate regularly in sedentary work.

[68] I understand that in a letter dated October 22, 2020, her doctor suggested that she try sedentary work.^{Footnote 30} I cannot accept this as evidence of capacity for two reasons.

[69] First, I must consider the Claimant’s personal circumstances along with her functional limitations. So, while the doctor may have been suggesting trying sedentary work from a physical perspective, her ability to access sedentary work is limited due to her personal circumstances which add an additional barrier to her employability. I cannot assume that her physician considered those factors the way the law requires me to.

[70] Second, I cannot put much weight on this letter from October 2020 from the Claimant’s doctor. The doctor provided a much more detailed picture of the Claimant’s functional limitations in his CPP medical report, which he completed just one year before. This letter states that there are no significant examination findings except for subjective tenderness of the back muscles. But since the Claimant’s condition is chronic back pain, significant examination findings would not be expected. The Claimant’s functional limitations that the doctor already outlined in the CPP Medical Report stem from that chronic pain. The doctor doesn’t state that the functional limitations are no longer occurring.

[71] In my view, the doctor wrote the October 2020 letter with the Claimant’s diabetes in mind, as that is the only condition the doctor comments on in the problem history. Simply put, this letter raises more questions than it answers about the Claimant’s capacity, and I don’t feel confident that the letter is commenting on the Claimant’s ability to work given her chronic back pain, which is the issue I’m considering.

[72] The Claimant did not see her doctor regularly in 2019. I won’t infer that this means that her disability was not severe. She had the medication she needed for her pain. A failure to see a doctor does not necessarily mean that a disability is not serious. Medical monitoring or treatment and the frequency of doctor visits do not necessarily tell me how the Claimant’s functional limitations were impacting her ability to work.

[73] In a case called Villani, the Federal Court of Appeal made it clear that the General Division must decide, “in practical terms”, whether the claimant is incapable regularly of pursuing any substantially gainful work. They are not supposed to think about vague categories of labour that the claimant might do that are not connected to reality. More specifically, the Court in Villani explained:

…decision-makers ignore the language of the statute by concluding, for example, that since a [claimant] is capable of doing certain household chores or is, strictly speaking, capable of sitting for short periods of time, he or she is therefore capable in theory of performing or engaging in some kind of unspecified sedentary occupation which qualifies as “any” occupation within the meaning of subparagraph 42(2)(a)(i) of the Plan.^{Footnote 31} (emphasis mine)

[74] In addition, I accept the Claimant’s testimony about the affect that her disability has had on her day-to-day living. I also accept that she is not physically capable of the kind of retraining she would need to do to be employable in a sedentary job. She cannot sit for more than 15 minutes. Her lack of English is a key barrier to accessing sedentary work in Canada. Her inability to sustain a seated position makes it difficult to learn English and to retrain.

[75] The Claimant does not have to show that efforts to get and keep work were unsuccessful because of her medical condition.

The disability is prolonged

[76] The Claimant’s disability is likely to be long continued and of indefinite duration. This means it is prolonged within the meaning of the CPP.^{Footnote 32}

[77] In the CPP Medical Report, the Claimant’s doctor stated that it was unknown whether from a strictly medical standpoint he expected the Claimant to return to any type of work in the future. He stated that the Claimant is in pain all the time, and that staying in any position for a long time gives her increased pain. She must keep changing her position. He noted that she had seen a specialist but that no treatment had helped yet.^{Footnote 33}

[78] In August 2019, the orthopedic surgeon stated that the prognosis for significant functional improvement and return to work “at this point is not very good.”^{Footnote 34}

[79] In April 2021, her doctor stated that he did “not see her returning to work in the coming future.”^{Footnote 35}

[80] Years later, when the Claimant testified at the General Division hearing, the Claimant explained that her pain was worse than before. That worsening existed despite years of treatment, including medication.

[81] I’m satisfied that the Claimant had a severe and prolonged disability by July 2018 when she stopped working. Her coverage period didn’t end until December 31, 2020. The Claimant applied for the disability pension in October 2019.^{Footnote 36}

[82] July 2018 is also the earliest that the Claimant can be considered disabled under the CPP because it is 15 months before she applied in October 2019.^{Footnote 37} Payments start four months later in November 2018.

Conclusion

[83] I allowed the appeal. The General Division made an error of law. I gave the decision that the General Division should have given: the Claimant is entitled to a CPP disability pension. Payments start November 2018.