Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

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

Overview

[3] The Appellant is now 61 years old. She worked at odd jobs when her two children were young. Then she trained to be a firefighter, a paramedic, and a cabinet maker. She worked for ambulance and fire services. Around 2007 she started working as a shop supervisor for a manufacturing company. She held that job for about four years. She went on medical leave in September 2011. She was fired eight months later because she wasn’t well enough to go back to work. She hasn’t worked since then, except for a brief attempt at a different job.

[4] The Appellant says she can’t work because she has post traumatic stress disorder (PTSD), depression, and chronic pain. The first two conditions were the result of sexual assaults in the 1990s. She managed to control her symptoms until 2011, when she decided to report the assaults to the RCMP after other victims came forward. The investigation and the ensuing trial lasted four years. During this time, her mental health got worse.

[5] The Appellant applied for a CPP disability pension in July 2021. The Minister of Employment and Social Development (Minister) refused her application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[6] The Appellant says she hasn’t improved since 2011. Her depression and PTSD got even worse after she was injured in an ATV accident in early 2015. This is because she had to stop doing activities that helped her cope with her mental condition.

[7] The Minister says the evidence doesn’t support that the Appellant has been disabled continuously. The Minister also argues that the Appellant had some work capacity, so she should have tried to do suitable work.

What the Appellant must prove

[8] For the Appellant to succeed, she must prove she has a disability that was severe and prolonged by December 31, 2014. This date is based on her CPP contributions.^{Footnote 1} She must also prove that she continues to be disabled.^{Footnote 2}

[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 3}

[11] This means I have to look at all of the Appellant’s medical conditions together to see what effect they have on her ability to work. I also have to look at her background (including her age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether her disability is severe. If the Appellant is capable regularly of doing some kind of work that she could earn a living from, then she 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 4}

[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 she has a severe and prolonged disability. She has to prove this on a balance of probabilities. This means she has to show it is more likely than not that she is disabled.

Reasons for my decision

[15] I find that the Appellant had a severe and prolonged disability as of September 2011. She continues to be disabled.

[16] I based my decision on the Appellant’s mental health condition, not her chronic pain. She seemed honest at the hearing. Her evidence was plausible, and I believe what she told me about her mental and physical health. So, I accept that she has chronic pain. But the medical evidence shows her pain started after December 2014. She must provide medical evidence that supports that her pain affected her ability to work no later than December 31, 2014.^{Footnote 5}

[17] However, the Appellant’s mental health condition is the reason she can’t work. Even if she had no pain, I would still find that her disability was severe and prolonged.

The Appellant’s disability was severe

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

The Appellant’s functional limitations affected her ability to work

[19] The Appellant has PTSD.^{Footnote 6} However, I can’t focus on her diagnosis.^{Footnote 7} I have to focus on whether she has functional limitations that got in the way of her earning a living.^{Footnote 8} I find that she does.

What the Appellant says about her functional limitations

[20] The Appellant explained that she has struggled with her mental health since her first child was born in 1986. She went to counselling and learned coping techniques. These helped her to continue working after she was assaulted by her physiotherapist in the mid-1990s. She managed to cope with the impact of the assaults for more than 10 years.

[21] This changed in early 2011. The Appellant read in the newspaper that the man who assaulted her had been charged with assaulting other women between 1998 and 2009.^{Footnote 9} She felt that she had to report what had happened to her. As a result, more charges were laid. The man was eventually convicted. But that didn’t happen for almost four years. In the meantime, the Appellant’s mental health got worse.

[22] The Appellant said that having to give written statements about the assaults was stressful because she had to re-live what had happened. She was terrified the accused would come after her. She was afraid she would run into him in their small town, so she stopped going out. She quit playing soccer and other team sports. She became depressed, anxious, and withdrawn. She was admitted to hospital after a suicide attempt in September 2011.^{Footnote 10}

[23] The Appellant was referred to Victim Services for counselling. She saw a therapist regularly until the trial was over. In her counselling sessions, she remembered incidents of sexual abuse from her childhood, causing more trauma.

[24] The Appellant says that her PTSD and depression cause functional limitations that have affected her ability to work continuously since 2011. She says:^{Footnote 11}

• She is afraid to go out in public or be around people. For example, she only runs errands twice a month, and only if she has a family member with her.
• She can’t remember simple things like how to get to stores. She forgets her appointments. She needs help remembering to take her medication. She relies on her spouse to pay bills and look after her finances.
• She can’t follow conversations, so finds it hard to participate. She has trouble finding the right words.
• She can’t focus on anything for long.
• She can’t make decisions or prioritize so that she can complete tasks. For example, she often can’t decide what to make for dinner, so she doesn’t eat. She takes days to make a shopping list, so she runs low on food. Because of this, her spouse does most of the grocery shopping.

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

[25] There isn’t much medical evidence of the Appellant’s mental health conditions before 2020, but what there is supports what she says.

[26] In September 2011, the Appellant’s family doctor (Dr. Morris), wrote that she was currently unable to work because of a “medical illness.”^{Footnote 12}

[27] Marcia Rutland is the clinical counsellor who saw the Appellant after she was referred in 2011 “due to her sexual assault reporting and suicidal ideation.” Ms. Rutland said her notes had been shredded. However, she was able to recall that she saw the Appellant for trauma, suicidal ideation, self-harm, depression, anxiety, and PTSD in the pre-trial period, through the trial, sentencing, and into the post-trial period.^{Footnote 13}

[28] These admittedly brief reports confirm what the Appellant wrote in her victim impact statement in December 2014: that reporting the assaults in April 2011 caused a significant downturn in her mental health. She attempted suicide that September. Despite counselling, her condition got worse as months and years went by and the trial was delayed. She lost her job because she wasn’t well enough to return from medical leave. The guilty verdict in December 2014 came as a relief, but she was still fearful and reclusive. She didn’t feel she was employable.^{Footnote 14}

[29] There is very little medical evidence about the Appellant’s mental health from 2015 to 2020. She explained that Dr. Morris told her she had to “suck it up” in order to get better. So, when her counselling sessions with Marcia Rutland ended in 2015, she didn’t know where to go for help. She was upset and ashamed. She didn’t think there was any point in talking to Dr. Morris about her mental health because she wouldn’t do anything.

[30] The Appellant got a new family doctor, Dr. Ma, in 2017. Dr. Ma connected her with mental health services. But when the Appellant went away for the winter, they closed her file. It took a long time for her services to start again, and she was finally referred to a psychiatrist, Dr. Drouillard.

[31] The Appellant started seeing Dr. Drouillard, in December 2020. Dr. Drouillard’s report confirms what the Appellant said about her limitations. She had low mood, problems with multi-tasking, and difficulty filling out an application. She avoided everything, dissociated, and was hypervigilant and irritable.^{Footnote 15}

[32] In October 2021, Dr. Drouillard completed the medical report for the Appellant’s CPP disability application. She accepted that the Appellant’s PTSD symptoms began in January 2011.^{Footnote 16} She said the Appellant’s functional limitations were:^{Footnote 17}

• poor executive functioning
• inability to complete tasks
• isolation and not engaging socially
• unable to follow through on plans

[33] In March 2023, Dr. Drouillard said the Appellant had tried many therapies and medications, with minimal benefit. She said she was permanently disabled by her psychiatric condition, and her prognosis was poor.^{Footnote 18}

[34] The medical evidence supports that the Appellant’s mental health conditions prevented her from functioning in a workplace because she couldn’t pay attention, stay on task, or be around people she didn’t know and trust.

What the Minister says about the medical evidence

[35] The Minister suggested there were gaps in the medical evidence because the Appellant’s condition wasn’t that bad after 2011.

[36] First, the Minister noted that the Appellant saw Dr. Morris in January 2013 for hot flashes and high blood pressure. The only clue that she had a mental health condition was that she was taking Effexor.^{Footnote 19} When she went back two weeks later, she reported that she was feeling much better, had more energy, and was able to sleep better. In April 2013, she didn’t talk about her mental health.^{Footnote 20} It appears she didn’t go back to see Dr. Morris—or any other doctor—until after the ATV accident in early 2015. The only medical care she received after that was for shoulder pain.^{Footnote 21}

[37] It’s worth noting that Dr. Morris did not record that the Appellant’s anxiety and depression symptoms had improved in January 2013, as the Minister claims. The note only refers to the Appellant’s perimenopausal symptoms: hot flashes, lack of energy, and insomnia. The Appellant didn’t say that these limitations affected her ability to work.  

[38] The Minister also argued that Dr. Drouillard’s reports show the Appellant’s condition got worse after December 2014, and she didn’t get mental health therapy until 2018. In addition, Dr. Drouillard only recommended medication changes and follow-up.

[39] But the Appellant did get mental health therapy before 2018. She saw Marcia Rutland from 2011 until early 2015. She explained why it took years before she got help after that, and I believe her. It wasn’t because she was better. She also admitted that the ATV accident made her condition worse. That doesn’t mean it wasn’t already severe.

[40] As for Dr. Drouillard’s treatment recommendations, the Minister didn’t file any evidence to show why medication changes and follow-up mean a condition isn’t that bad. I note as well that the Appellant was already getting counselling, so Dr. Drouillard didn’t have to suggest it. I don’t know what else she could have recommended when, as she said, the Appellant had already tried many different treatments without success.

The Appellant can’t work in the real world

[41] To be severe, the Appellant’s functional limitations must prevent her from earning a living at any type of work, not just her usual job.^{Footnote 22}

[42] When I am deciding whether the Appellant can work, I can’t just look at her medical condition and how it affects what she can do. I must also consider factors such as her age, level of education, language abilities, and past work and life experience. These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that she can work.^{Footnote 23}

[43] I find that the Appellant can’t work in the real world. She hasn’t been able to work since September 2011.

[44] The Appellant was 52 years old in December 2014. She had no language issues and had a variety of work experience and transferable skills. But these weren’t enough to overcome the limitations caused by her mental health condition. A person who can’t be around other people, can’t focus, and can’t remember basic information isn’t likely to succeed in going to any job regularly or being productive while they are there.

[45] The Minister argued that the Appellant took courses and obtained certifications between 2012 and 2015, and that these show she was capable of retraining or working.

[46] I don’t agree. I accept what the Appellant told me about these courses. She explained that she took them to keep her safety and other certifications up to date, because she hoped she would be able to go back to work. She did them online and she usually managed no more than an hour at a time, even though she did them at home where she felt safe and had less stress.^{Footnote 24}

[47] The Appellant tried to work. Her efforts confirm that she didn’t have any work capacity. She contacted many employers in security, construction, and other fields.^{Footnote 25} Only one of them offered her a job, which I discuss below. I agree with the Appellant that her failure to find other employment was at least partly due to the fact that a medical background check would reveal her ongoing mental health condition.

[48] In 2012 or 2014, the Appellant was hired as a medic in the Alberta oil field. She only lasted a few days. Working with men left her feeling vulnerable and unsafe, and she had a breakdown.

[49] This experience tells me the Appellant would likely have difficulty in any workplace. She is unlikely to find a female-only work environment. Even if she did, her other limitations would prevent her from doing her job properly.

[50] I accept the Appellant’s evidence that she has always wanted to return to the workforce. She enjoyed working and her family needs the money. I believe she tried her best to find a job that she could do. But that job doesn’t exist.

[51] I find that the Appellant’s disability was severe as of September 2011, when she went on sick leave from her job.

The Appellant’s disability was prolonged

[52] I find that the Appellant’s disability was prolonged as of September 2011.

[53] The Appellant’s condition began in 2011. As I discussed above, it has continued since then. It will more than likely continue indefinitely. She hasn’t improved, despite trying for more than 10 years. In March 2023, Dr. Drouillard said her prognosis is poor.^{Footnote 26}

When payments start

[54] The Appellant had a severe and prolonged disability in September 2011.

[55] However, the Canada Pension Plan says a person can’t be considered disabled more than 15 months before the Minister receives their disability pension application.^{Footnote 27} After that, there is a 4-month waiting period before payments start.^{Footnote 28}

[56] The Minister received the Appellant’s application in July 2021. That means she is considered to have become disabled in April 2020. Her pension payments start as of August 2020.  

Conclusion

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

[58] This means the appeal is allowed.