Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

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

Overview

[3] The Appellant is 49 years old. He was 39 years old when he last qualified for disability benefits. He had a workplace injury in August 2010 after which he was diagnosed with degenerative disc disease in his back. This caused limitations with lifting, twisting, and sitting.

[4] The Appellant applied for a CPP disability pension on January 24, 2022. 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 Minister says the Appellant developed a number of medical conditions, but this was after his qualifying date. The Minister also says the Appellant clearly had the capacity to work after he last qualified for disability benefits in 2013 as he worked full-time for two years from 2015 to 2016.

[6] The Appellant says he did return to work, but due to his back condition, he worked at a slow pace. He said he quit his job because his employer asked him to do work that would aggravate his back.

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, 2013. 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

Conditions that began after the Appellant last qualified for disability benefits

[14] The Appellant filed a number of medical records for various conditions; however, many of them began after the Appellant last qualified for disability benefits in 2013. I cannot consider conditions that began after 2013 as the test requires the Appellant to prove that he had a severe and prolonged disability by December 31, 2013. The only condition that existed before this date was the Appellant’s back condition. This decision will only address this condition.

Reasons for my decision

[15] I find that the Appellant hasn’t proven he had a severe and prolonged disability by December 31, 2013. He worked full-time for two years from 2015 to 2016, which shows he has work capacity. The Appellant ultimately stopped working because of a hernia and other medical issues that arose after he last qualified for disability benefits.

Was the Appellant’s disability severe?

[16] The Appellant has degenerative disc disease. 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 think about how the Appellant’s condition affected his ability to work.^{Footnote 6}

[17] The Appellant’s disability was severe. 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 condition has resulted in functional limitations that affect his ability to work. He says he got injured at his place of work in August 2010. At the time he was working as a drywaller. After this accident, he was diagnosed with degenerative disc disease. The Appellant says his medical condition caused the following functional limitations:

• inability to sit or stand for more than 10-15 minutes without extreme pain
• inability to walk more than one block before he has to take a break
• difficulty lifting and carrying
• difficulty lifting his hand above his head
• difficulty reaching
• difficulty bending
• difficulty driving for more than 30 minutes

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

[19] The Appellant must provide some medical evidence that supports that his functional limitations affected his ability to work by December 31, 2013.^{Footnote 7}

[20] The medical evidence supports what the Appellant says about his back condition.^{Footnote 8}

[21] The medical evidence supports that the Appellant’s functional limitations affected his ability to work as a drywaller.

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

The Appellant has followed medical advice

[23] To receive a disability pension, an appellant must follow medical advice.^{Footnote 9} 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 10}

[24] The Appellant has followed medical advice.^{Footnote 11} He has done physiotherapy, and taken injections, cannabis, and medication for pain management.

[25] The Appellant said he only took one injection and stopped because the pain of receiving the injection was too much. This is reasonable as the Appellant uses other methods to manage pain including cannabis and oral medication.

[26] 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 12}

The Appellant can work in the real world

[27] When I am deciding whether the Appellant can work, I can’t just look at his medical conditions and how they affected what he could do. I must also consider factors such as his:

• age
• level of education
• language abilities
• past work and life experience

[28] 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 13}

[29] I find that the Appellant can work in the real world. I will assess the various factors that lead to this conclusion.

[30] The Appellant was 39 years old at the time he last qualified for disability benefits. He had two years of high school. He also had about 15 years of experience as a drywaller. He is fluent in English. The Appellant’s personal circumstances would have helped him find work. He was young, had work experience, and spoke English fluently.

[31] When the Appellant last qualified for disability benefits in 2013, he was not working due to his back injury. He testified that at the time he stayed at home all day mostly watching television. He did very little around the house and relied on his spouse He was on welfare which wasn’t enough for him to live on, so he was forced to go back to work.

[32] He worked for two years doing drywalling from 2015 to 2016. He worked 40 hours a week, 5 days a week. He did not receive any accommodation at his job. He rarely missed work. He testified that he was “poor” and needed the hours. He has not worked since 2016.

[33] The Appellant testified that he was a lot slower at his job after the back injury. His superior complained about the Appellant’s slow pace three to four times a month. The Appellant said working full-time was very difficult and he coped by drinking in excess. One Friday afternoon, his superior asked him to do some sanding. The Appellant refused because it would aggravate his back. This led to the Appellant quitting his job, after almost two years of work, because his superior gave him an ultimatum to either do the sanding or he would find a replacement to fill the Appellant’s job.

[34] After this, the Appellant continued to work with another employer also doing drywalling when he got a hernia and hasn’t worked since.^{Footnote 14} The hernia occurred after the Appellant last qualified for disability benefits so I cannot consider it when assessing this application.

[35] I considered whether the Appellant worked for a benevolent employer, and I find he did not. People who work for a benevolent employer can still be severely disabled under the CPP even if they work regular hours and receive income that is “substantially gainful.”^{Footnote 15}

[36] The Minister does not have to prove the employer is not benevolent. Rather it is up to the Appellant to show that his employer was benevolent. Employers are presumed, until proven otherwise, to be getting fair value in return for the wages or salary they pay to their employees.^{Footnote 16}

[37] The term benevolent employer is not used or defined in the CPP. We can look to the Minister’s Canada Pension Plan Adjudication Framework for assistance which defines a “benevolent employer” as:

…someone who will vary the conditions of the job and modify their expectations of the employee, in keeping with her or his limitations. The demands of the job may vary, the main difference being that the performance, output or product expected from the client, are considerably less than the usual performance output or product expected from other employees.^{Footnote 17}

[38] In order to determine whether an employer is benevolent, the following factors should be considered:^{Footnote 18}

1. (i) whether the Appellant’s work was productive: Although the Appellant said he worked at a slower pace, he testified that he did a good and constant job and the work got done properly. This tells me he was productive at his job.
2. (ii) whether the employer was satisfied with the Appellant’s work performance: The Appellant’s employer did frequently complain about his pace informally, but based on the Appellant’s testimony, the employer had no other complaints and kept the Appellant employed for almost two years. Overall, I find the employer was satisfied with the Appellant’s performance.
3. (iii) whether the work expected of the Appellant was significantly less than the work expected of other employees: Based on the Appellant’s testimony, the work expected of him may have been reduced as he worked at a slower pace. That is all the information I have which is insufficient to find that the work expected of the Appellant was significantly less than the work expected of other employees.
4. (iv) whether the Appellant had received accommodations that went beyond what was required of an employer in a competitive marketplace: The Appellant didn’t receive any accommodations. He testified that there was no such thing in his line of work.
5. (v) whether the employer had experienced hardship as a result of those accommodations: I have no evidence before me to find that the employer suffered any hardship.

[39] Therefore, the Appellant has not proven that his employer was benevolent.

[40] I also considered whether the Appellant’s return to work was a failed work attempt. I find it was not. Evidence that an Appellant worked after they last qualified for disability benefits may show that the Claimant has some capacity to work, but not in all cases. Some work completed by a claimant can be a “failed attempt” that does not show a capacity for work at all. The Federal Court found that while there is no firm line between work that establishes capacity and work that is a failed attempt, a return to work that lasts only a few days would be a failed attempt, while two years of earnings consistent with what the Appellant earned before cannot be a failed attempt.^{Footnote 19}

[41] When considering whether work the Appellant did is a failed work attempt certain questions should be answered as follows:^{Footnote 20}

1. (i) Was the claimant able to find and keep a job, go to work regularly, and be reliable? (that is the “incapable regularly” part of the definition of a severe disability). The answer to this question is yes. The Appellant found two drywalling jobs. He attended work reliably and regularly, rarely missing a day. As noted above, the Federal Court says that the length of time a person worked after they last qualified for disability benefits is relevant to whether the Appellant was incapable regularly of working. Here the Appellant worked for two full years. I don’t think this on its own is determinative, but it suggests the Appellant was capable of regular employment. I note that the earnings the Appellant testified to do not accord with his table of CPP contributions.^{Footnote 21} I understand this discrepancy is because he was paid in cash sometimes, as per his testimony. The Appellant said he earned $41 an hour and worked 40 hours a week.
2. (ii) Was the claimant capable of doing enough of the kind of work that would allow them to earn a living? (that is the “substantially gainful” part of the definition of a severe disability). The answer to this question is also yes. The Appellant was able to do the job, albeit at a slower pace. In the span of two years, there was only one time the Appellant refused work that would impact his back. His employer unfairly threatened him with the termination of his employment, so the Appellant left that company and continued working with another construction company.
3. (iii) Was the claimant working for a benevolent employer? (the “work” part of the definition of a severe disability covers this). I already address this above and found the Appellant did not work for a benevolent employer.

[42] For all of the above reasons, I find the Appellant can work in the real world.

The Appellant stopped working because of his hernia

[43] 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 condition, in this case specifically his back issues.^{Footnote 22}

[44] The Appellant made efforts to work. But these efforts don’t show that the functional limitations that existed before December 31, 2013, get in the way of earning a living.

[45] After the Appellant refused work from one employer because sanding would aggravate his back, he continued working with another employer. He only stopped working completely after he got an inguinal hernia.

[46] Unfortunately, I can’t consider the hernia, since it and the functional limitations associated to the condition only began in 2016, well after the Appellant last qualified for disability benefits.

[47] I have a lot of sympathy for the Appellant’s situation. He appears genuine in his belief that he cannot work currently. Unfortunately, he last qualified for disability benefits in 2013.

Conclusion

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

[49] This means the appeal is dismissed.