Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Appellant, T. L., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of May 2020. This decision explains why I am allowing the appeal.

Overview

[3] The Appellant is 58 years old. He worked as a tow truck driver for about 17 years. On June 30, 2018, while working, he was hit by a vehicle. He injured his back and knee. He has not worked since the accident due to several limitations with walking, lifting, and squatting.

[4] The Appellant applied for a CPP disability pension on April 6, 2021. 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 Appellant says that he can’t work due to severe pain when performing any activity. He says he has to rest for a long period of time after doing most tasks, such as grocery shopping.

[6] The Minister says that although the Appellant has limitations after the accident, those limitations don’t prevent all types of work.

What the Appellant must prove

[7] For the Appellant to succeed, he must prove he had a disability that was severe and prolonged by December 31, 2021. 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 an appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[10] 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.

[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 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.

[13] 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.

Matters I have to consider first

I accepted documents sent in after the hearing

[14] The Minister requested medical records from the Appellant’s family doctor on February 15, 2023, and March 17, 2023.^{Footnote 4} The records were only provided after the hearing.^{Footnote 5} I accepted the records having considered several factors.^{Footnote 6} First, the records are relevant. Although the majority of the records are illegible due to poor quality, some of the records are legible and they speak to the Appellant’s medical condition. The evidence is new, and the Minister could not have filed the evidence earlier. Accepting the records did cause some delay to the decision, but the other factors outweigh this and support admission. The Appellant was given an opportunity to respond to the documents, but he did not.

Reasons for my decision

[15] I find that the Appellant had a severe and prolonged disability by December 31, 2021. 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 has chronic pain, degenerative changes in his spine, and osteoarthritis. However, I can’t focus on the Appellant’s diagnoses.^{Footnote 7} Instead, I must focus on whether he had functional limitations that got in the way of him earning a living.^{Footnote 8} 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 9}

[17] The Appellant’s disability was severe by December 31, 2021. I reached this finding by considering several factors. I explain these factors below.

What the Appellant says about his functional limitations

[18] The Appellant says that his medical conditions have resulted in functional limitations that affect his ability to work. The car accident impacted both his back and right knee. The Appellant says that his back pain has improved, but his right leg causes him a lot of pain and discomfort along with numbness and swelling. The Appellant says he has the following functional limitations:

• difficulty standing more than 20 minutes
• difficulty sitting more than 20 minutes—when he sits, he often needs to elevate his leg
• difficulty walking even for 5 minutes; when walking for 10 to 15 minutes for grocery shopping, for example, he needs to lean on the cart
• an inability to kneel and difficulty performing low-level work
• an inability to lift more than 20 pounds

[19] The Appellant says he can’t work as a tow truck driver because of his functional limitations. He says he cannot crouch to change a tire or get under a car, nor can he lift heavy items from ground level. These are all essential tasks as a tow truck driver.

[20] The Appellant also says that he cannot do any other job. He has severe pain and discomfort after performing any activity for more than a short period. After an activity like grocery shopping, he needs to rest for long periods of time due to pain and discomfort. Even on good days, he has to carefully consider anything he wants to do and decide if the pain that will result is worth it. He is able to do some household chores, but it takes him a lot longer and he has to sit down frequently in between tasks. On average he has to elevate his leg two to three times an hour to relieve the pain.

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

[21] The Appellant must provide some medical evidence that supports that his functional limitations affected his ability to work by December 31, 2021.^{Footnote 10}

[22] The medical evidence supports that the Appellant’s functional limitations affected his ability to work as a tow truck driver. ^{Footnote 11}

[23] A report dated September 2021 says that ankylosing spondylitis (a condition that affects the back) doesn’t contribute to the Appellant’s current level of impairment.^{Footnote 12} Another report dated February 2022 says the Appellant has no active ankylosing spondylitis.^{Footnote 13} The Minister points this out in their submissions as a basis for denying the appeal.

[24] However, the medical records still describe back pain and limitations due to the car accident. More importantly, the real issue causing the Appellant’s functional limitations is the injury to the Appellant’s right knee, which the Minister agrees is supported by the medical evidence. All of the Appellant’s conditions need to be considered when determining whether he qualifies for disability benefits.

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

The Appellant has followed some medical advice

[26] To receive a disability pension, an appellant must follow medical advice.^{Footnote 14} If an appellant 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 15}

[27] The Appellant followed some but not all medical advice. He gave a reasonable explanation for not following all advice.

[28] The Appellant did physiotherapy for nine months, but he had to stop because his insurance funding ran out. He testified that although the physiotherapy did help to a certain extent, it was also causing him more pain in his shoulders, so he stopped doing the home exercise program. The Appellant gave a reasonable explanation for not continuing physiotherapy.

[29] The Appellant was prescribed Percocet and oxycodonefor the pain, but he didn’t take it because he is afraid of becoming addicted. Both are opioids which are addictive medications. The Appellant testified that his family has a history of drug and alcohol addictions, and he doesn’t want to become a statistic. He said he was on heavy narcotics in the hospital, and he didn’t like the way the medication made him feel. When the pain is really bad, he will take Tylenol. Given his family history, his explanation is reasonable. I do not agree with the Minister’s position that the lack of medication use is evidence that the Appellant has work capacity.

[30] I pointed out that a note by Dr. Nousianinen, orthopaedic surgeon, mentioned steroid injections for pain relief. The Appellant testified that steroid injections were never discussed with him. I believe him. The note says: “We are going to follow up with him in 3 months, at that point in time, if the infection is excluded, we would consider an intraarticular injection of corticosteroid.”^{Footnote 16} Since this treatment was never discussed with the Appellant, he can’t be faulted for not trying it.

[31] An appellant is required to mitigate their condition by following treatment recommendations. The Appellant followed some medical advice. Since he gave a reasonable explanation for not following all medical advice, I can continue to assess his eligibility.^{Footnote 17}

[32] 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 18}

The Appellant can’t work in the real world

[33] 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

[34] 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 19}

[35] I find that the Appellant can’t work in the real world. I will assess the various factors that led me to this conclusion.

[36] The Appellant’s personal characteristics wouldn’t assist him to find work. The Appellant is 58 years old. He has a high school education and certifications as a forklift operator and tow truck driver. All of his work experience is as a tow truck driver or forklift operator, two professions he can no longer do because of his functional limitations. He is, however, proficient in English. Despite this, based on his age, his limited education, and specific work experience, it would be difficult for him to become re-employed again.

[37] The Appellant’s functional limitations prevent him from all types of work. He can’t sit, stand, or walk for long. He also can’t squat, and reaching above his shoulders is difficult. For these reasons, he isn’t a good candidate for retraining either.

[38] The Appellant cannot do a sedentary job. The Appellant testified that he cannot sit for more than 20 minutes at a time. He also has no experience in sedentary work. His computer experience is limited to email, basic internet browsing, and social media. He types with one finger.

[39] The Appellant can only do activities of daily living by pacing and resting. The Appellant can take care of his hygiene, do some household chores, and do errands like grocery shopping. However, all of these tasks take him a long time, so he has to do them slowly and rest frequently. If he pushes himself too much, he testified that he has to rest for four to five days. He also said he has to elevate his leg to ease the pain about three times within the span of an hour.

[40] The Appellant was the subject of two assessments which come to opposite conclusions about his ability to return to work. The first is a multidisciplinary assessment dated August 2020.^{Footnote 20} The report identified that the Appellant had the following functional limitations:

• no standing, walking or stair climbing beyond an occasional basis (6-34% of the day)
• no elevated work or forward bending beyond a rare basis (1-5% of the day)
• no crouching or kneeling
• no material handling beyond a light strength level

[41] Following a functional capacity evaluation that took less than two hours,^{Footnote 21} it was determined that the Appellant demonstrated the following abilities:^{Footnote 22}

• sitting and forward reaching on a frequent basis (34-65% of the day)
• standing, walking, stair climbing, waist-to-floor lifting of 10 pounds, waist‑to‑crown lifting of 10 pounds, and front carrying of 10 pounds on an occasional basis (6-34% of the day)
• forward bending, elevated working, waist-to-floor lifting of 20 pounds, waist‑to‑crown lifting of 20 pounds, and front carrying of 20 pounds on a rare basis (1-5% of the day)

[42] The report does not state what the Appellant was asked to do as part of the functional capacity evaluation, so I don’t know how the assessor determined the Appellant’s functional abilities.

[43] The August 2020 multidisciplinary assessment determined that the Appellant couldn’t return to his job as a tow truck driver. This was because of the requirement to squat, kneel, push, pull and lift.^{Footnote 23} However, the August 2020 report concluded that the Appellant has the capacity for work and identified the following suitable occupations:^{Footnote 24}

• food service counter attendants and food preparers
• other service support occupations like ticket takers and ushers
• material handlers, equipment operators like forklift operators, long haul and local truck drivers, tow truck drivers, delivery couriers, service drivers, or food delivery drivers

[44] The Appellant also underwent an independent orthopaedic assessment in September 2021.^{Footnote 25} Based on information received from the Appellant, a review of various medical records and a physical assessment of unknown duration, the orthopaedic surgeon determined that the Appellant:

• cannot tolerate the required sitting, standing, walking, bending, lifting, or carrying required as a tow truck driver; therefore, he cannot return to this job
• can only sit, stand, walk for limited durations, cannot do any significant lifting or carrying and would have difficulty with stairs, so he cannot return to any form of employment on a competitive, repetitive, consistent basis
• is not a good candidate for retraining due to these physical limitations

[45] Both of the reports give little insight into how they came to their conclusions.

[46] The difficulty that I have with the August 2020 report is that it concludes that the Appellant can sit for 34-65% of the day, and he can stand or walk for 6-34% of the day. This is at odds with the Appellant’s testimony and the other medical records. I asked the Appellant whether he could do a sedentary job, but he said that he can only sit for 20 minutes at a time, after which he needs to stand. He also said that if he walks for 10 to 15 minutes, he needs an aid like a grocery cart. The Appellant’s family doctor filled out a report dated May 2021 in which he confirms that the Appellant’s functional limitations include difficulty sitting, standing, and walking for more than 20 minutes due to severe pain.^{Footnote 26}

[47] In addition, the August 2020 assessment recommends tow truck driver as an alternate career, while at the same time concluding that the Appellant can’t do that same job.

[48] I prefer the September 2021 report over the August 2020 report. The functional limitations described in the September 2021 report are in line with the Appellant’s testimony and the family doctor’s report.

[49] Based on the Appellant’s testimony and the May 2021 family doctor’s report, I agree with the September 2021 assessment that the Appellant doesn’t have work capacity. His functional limitations prevent him from doing all types of work. He is only able to do activities of daily living with pacing and resting. The Appellant would not be able to attend a job consistently.

[50] Due to the Appellant’s functional limitations and his personal circumstances, the Appellant doesn’t have any work capacity.

[51] I find that the Appellant’s disability was severe by July 2018, after the accident.

Was the Appellant’s disability prolonged?

[52] The Appellant’s disability was prolonged.

[53] The Appellant’s conditions began in July 2018. These conditions have continued since then, and they will more than likely continue indefinitely.^{Footnote 27}

[54] It has been five years since the accident and the Appellant still has a number of functional limitations.

[55] The Appellant has tried physiotherapy and he gave a reasonable explanation for not taking pain medication. In any event, pain medication won’t improve his condition, it will only help him cope with the pain. There is no other treatment left to try.

[56] Dr. Burkhart says that the Appellant has permanent sensation and proprioception deficits.^{Footnote 28} Proprioception is the ability to tell how your body is positioned as you move.

[57] Dr. Getahun also says that he considers the Appellant’s impairments permanent as they have persisted for over three years and have not resolved with treatment to date.^{Footnote 29}

[58] I find that the Appellant’s disability was prolonged by July 2018.

When payments start

[59] The Appellant had a severe and prolonged disability in July 2018.

[60] 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 30} After that, there is a four-month waiting period before payments start.^{Footnote 31}

[61] The Minister received the Appellant’s application in April 2021. That means he is considered to have become disabled in January 2020.

[62] Payment of his pension starts as of May 2020.

Conclusion

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

[64] This means the appeal is allowed.