BE v Minister of Employment and Social Development

BE v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2024-06-20 Neutral citation 2024 SST 688 Reference number GP-23-1775 Member Selena Bateman Division General Division Decision Appeal dismissed Subjects CPP - Disability - Severe CPP - Disability - Severe - Work capacity Decision Content Citation: BE v Minister of Employment and Social Development, 2024 SST 688 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: B. E. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated September 12, 2023 (issued by Service Canada) Tribunal member: Selena Bateman Type of hearing: In Writing Decision date: June 20, 2024 File number: GP-23-1775 On this page Decision Overview What the Appellant must prove Reasons for my decision Conclusion Decision [1] The appeal is dismissed. [2] The Appellant, B. E., 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 59 years old. She worked as a nurse for X. She has post-traumatic stress disorder and major depressive disorder. She last worked in January 2020. [4] The Appellant applied for a CPP disability pension on September 26, 2022. 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. [5] The Appellant says that her physicians have found her permanently disabled from working. She says she has severe anxiety and depressive symptoms. Treatment hasn’t helped her enough to return to work.Footnote 1 [6] The Minister says that the evidence doesn’t support a finding of disability. The Minister says that that her limitations wouldn’t prevent her from doing all types of work.Footnote 2 What the Appellant must prove [7] For the Appellant to succeed, she must prove she has a disability that was severe and prolonged by December 31, 2023. This date is based on her CPP contributions.Footnote 3 She must also prove that she continues to be disabled.Footnote 4 [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. A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.Footnote 5 [10] The Appellant must prove she has a severe and prolonged disability on a balance of probabilities. She has to show it is more likely than not that she is disabled. Reasons for my decision [11] I find that the Appellant hasn’t proven she had a severe disability by December 31, 2023. This means I don’t have to consider whether her disability was prolonged. The Appellant’s functional limitations affected her ability to work [12] The Appellant has post-traumatic stress disorder (PTSD) and major depressive disorder. [13] However, I can’t focus on the Appellant’s diagnoses.Footnote 6 Instead, I must focus on whether she has functional limitations that got in the way of her earning a living.Footnote 7 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 affected her ability to work.Footnote 8 [14] I find that the Appellant has functional limitations that affected her ability to work. What the Appellant says about her functional limitations [15] The Appellant says that her medical conditions resulted in functional limitations that affect her ability to work. [16] The Appellant says that her life forever changed because of workplace harassment that took place in January 2020. She says: she can’t stare at a computer screen for 20 minutes. she can’t drive a vehicle because she has suicidal thoughts. She has a lot of bad days. She has distressing memories of work events. She cries daily. She gets bad anxiety attacks. She stays at home almost all the time. She has difficulty with her memory and concentration. She has trouble keeping her thoughts in order. She no longer showers daily. She has “slacked up” on housework, meal preparation, and vehicle maintenance. She only eats pre-made meals now.Footnote 9 What the medical evidence says about the Appellant’s functional limitations [17] The Appellant must provide some medical evidence that supports that her functional limitations affected her ability to work no later than December 31, 2023.Footnote 10 [18] The medical evidence supports that the Appellant was diagnosed with PTSD and major depressive disorder. She also had anxiety symptoms. These conditions arose from a violence in the workplace harassment incident. Her symptoms that led to her stopping work began in January 2020. Before this, in March 2019 she responded to a serious medical issue at her workplace. She has severe anxiety, frequent panic attacks, and difficulty sleeping. She has limitations to her concentration and memory.Footnote 11 [19] The Appellant has unwanted memories and flashbacks. She experiences physical reactions that include shaking and sweating when she is reminded of her workplace. She had muscle tension and pain. Her PTSD trigger includes the physical workplace site.Footnote 12 [20] The medical evidence supports that the Appellant’s mental health limitations prevented her from doing her usual job within X. However, I will explain why she wasn’t disabled from working all types of jobs outside of her usual workplace. [21] Next, I will look at whether the Appellant followed medical advice. The Appellant followed medical advice [22] To receive a disability pension, an appellant must follow medical advice.Footnote 13 [23] The Appellant followed medical advice. She received mental health therapy. She was treated by an occupational therapist, trauma counsellor, and psychologist. She completed vocational rehabilitation.Footnote 14 The Appellant’s arguments on mental health treatment [24] The Appellant says that she didn’t improve with treatment. She says that she had side effects to medication, and that no medication has helped her mental health. She says she doesn’t know where to get therapy, and that nothing is available for mental health. During COVID, offices were shut down. It was almost impossible to see a doctor or a professional.Footnote 15 [25] The Appellant says she no longer has appointments with Dr. Larsen, her family doctor. She moved to another town and rarely drives the distance it would take for her to get to Dr. Larsen’s office.Footnote 16 [26] I didn’t find the Appellant’s argument persuasive. The Appellant provided mental health treatment and education as a nurse for many years.Footnote 17 I don’t accept that she didn’t know enough about the mental health system to request services. There isn’t evidence to support that she talked to Dr. Larsen or other professionals about this barrier to services. Her argument is contradictory to the medical evidence that shows she did receive the services she said she couldn’t access. [27] The evidence from the Appellant suggests that she isn’t currently making any treatment efforts to mitigate her disability. She doesn’t see Dr. Larsen. I asked the Appellant to list her current treatment regime. Her response didn’t list any current treatment.Footnote 18 However, she did try treatments that were recommended to her in the past. The Appellant’s limitations improved with treatment [28] The medical evidence supports that the Appellant’s limitations improved with treatment. I relied on the reports from her treatment team. These showed positive improvements. [29] The Appellant started Wellbutrin medication in February 2020. Dr. Larson noted that she had an improvement with this medication.Footnote 19 [30] In April 2021, the Appellant made significant therapeutic gains. She reported improvements in her sleep. She was no longer isolating. She used the skills she learned to address her anxiety. Her mood improved considerably. She began to drive again.Footnote 20 [31] In January 2022, the Appellant made functional gains in activities of daily living. She no longer avoided leaving her home. She increased home-cooking and baking. She was able to attend treatment sessions of over two hours in length.Footnote 21 [32] In November 2022, Dr. Larsen wrote that the Appellant improved with her forms of therapy from June 2020 until January 2022.Footnote 22 [33] I now must decide whether the Appellant can regularly do other types of work. 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 23 The Appellant can work in the real world [34] When I am deciding whether the Appellant can work, I can’t just look at her medical conditions and how they affect what she can do. I must also consider factors such as her: age level of education language abilities past work and life experience [35] 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 24 [36] The Appellant could work in the real world. [37] The Appellant has good odds of employability. Her age is her largest limiting factor. It isn’t likely for her to retrain and enter the workforce before the usual age of retirement. She speaks English. She has post-secondary education. She has considerable experience working as a nurse, working in direct practice and education.Footnote 25 She has many transferable skills that make her a competitive candidate to employers in the real world. [38] When I factor in the Appellant’s limitations, a return to work at her usual worksite isn’t appropriate. This would trigger her residual PTSD symptoms. More broadly, working within X would likely be too overwhelming and anxiety-inducing. However, this doesn’t eliminate all forms of work. Next, I explain why. The Appellant has work capacity [39] The medical evidence supports that the Appellant has residual work capacity outside of work in X. I gave significant weight to the reports by her treatment team. The opinions were made after assessment and treatment. In April 2021, the clinical counsellor and occupational therapist wrote that the Appellant was found fit to work with limitations. It was recommended that she be restricted from working in the same institution as the individual involved in her harassment complaint.Footnote 26 In January 2022, the occupational therapist wrote that the Appellant was “able to manage functionally when she is not in fear of having to return to [X].” The occupational therapist explained that she demonstrated readiness to try a return-to-work trial.Footnote 27 [40] Dr. Larsen had a different opinion. In May 2021, Dr. Larsen completed a medical examination for pension form. Dr. Larsen ticked off the box that noted she is permanently incapable of pursuing regularly any substantially gainful occupation. In the medical report from November 2022, Dr. Larson added that the psychologist and occupational therapist recommended “not returning.” Medical retirement was recommended.Footnote 28 [41] I considered Dr. Larsen’s medical opinions. I preferred the work capacity evidence from the treatment team over Dr. Larsen’s. [42] The May 2021 medical examination form didn’t have a narrative section. There is no elaboration or explanation about how Dr. Larsen concluded that the Appellant was permanently disabled. This is important because the month prior her treatment team found her fit to work with limitations. [43] The evidence that Dr. Larsen relied on to make her prognosis in November 2022 didn’t support that the Appellant was permanently disabled from working any job. By this time, a second report was available to Dr. Larsen that again found her able to work outside of X. I understand “not returning” to mean not returning to her former employer or former worksite. This was the recommendation from her treatment team. [44] Secondly, Dr. Larsen didn’t explain how the Appellant continued to be disabled despite various forms of treatment that made improvements in her conditions between 2020 and 2022 (medication, occupational therapy, trauma counselling, and psychology). The Appellant didn’t return to X [45] The Appellant didn’t try a return to work at her usual job site. She says that X wouldn’t move the manager that harassed her. She also says that vocational rehabilitation tried setting up a return to work in a community X office. She can’t recall the details as to why this work attempt wasn’t tried.Footnote 29 [46] Working for the Appellant’s usual employer and at her usual worksite isn’t suitable. Because of this, I wasn’t concerned that she didn’t try a position that isn’t appropriate for her. The Appellant didn’t try to find suitable work [47] If the Appellant can work in the real world, she must show that she tried to find and keep a suitable job. She must also show her efforts weren’t successful because of her medical conditions.Footnote 30 Finding and keeping a suitable job includes retraining or looking for a job she can do with her functional limitations.Footnote 31 [48] I asked the Appellant if she had made efforts to look for work. She said that she didn’t have time to consider employment. She says that she was consumed with treatment four times per week, her symptoms, and the harassment investigation.Footnote 32 [49] I understand that the Appellant had considerable mental health treatment around 2020 to early 2022. However, this isn’t a reasonable explanation. She didn’t try to look for work after her rehabilitation treatment concluded, when she was found fit to work with limitations (to working at the same institution). [50] Therefore, I can’t find she had a severe disability by December 31, 2023. Conclusion [51] The appeal is dismissed. I find that the Appellant isn’t eligible for a CPP disability pension because her disability wasn’t severe. Because I have found that her disability wasn’t severe, I didn’t have to consider whether it was prolonged. Footnotes Footnote 1 See GD1-3 to 4. Footnote 2 See GD4. Footnote 3 Service Canada uses an appellant’s years of CPP contributions to calculate their coverage period, or “minimum qualifying period” (MQP). The end of the coverage period is called the MQP date. See section 44(2) of the Canada Pension Plan. The Appellant’s CPP contributions are on GD2-44 to 45. Footnote 4 In Canada (Attorney General) v Angell, 2020 FC 1093, the Federal Court said that the appellant has to show a severe and prolonged disability by the end of their minimum qualifying period and continuously after that. See also Brennan v Canada (Attorney General), 2001 FCA 318. Footnote 5 Section 42(2)(a) of the Canada Pension Plan gives this definition of severe and prolonged disability. Section 68.1 of the Canada Pension Plan Regulations says a job is “substantially gainful” if it pays a salary or wages equal to or greater than the maximum annual amount a person could receive as a disability pension. Footnote 6 See Ferreira v Canada (Attorney General), 2013 FCA 81. Footnote 7 See Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 8 See Bungay v Canada (Attorney General), 2011 FCA 47. Footnote 9 See GD2-26 to 29 and GD10. Footnote 10 See Warren v Canada (Attorney General), 2008 FCA 377; and Canada (Attorney General) v Dean, 2020 FC 206. Footnote 11 See GD1-20 to 24 and GD2-76. Footnote 12 See GD1-22 and GD2-81. Footnote 13 See Sharma v Canada (Attorney General), 2018 FCA 48. Footnote 14 See GD2-76 and 81. Footnote 15 See GD10. Footnote 16 See GD10. Footnote 17 See GD2-40 to 41. Footnote 18 See GD9 and GD10. Footnote 19 See GD2-76. Footnote 20 See GD2-108 to 112. Footnote 21 See GD2-82. Footnote 22 See Gd2-76. Footnote 23 See Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 24 See Villani v Canada (Attorney General), 2001 FCA 248. Footnote 25 See GD2-40 to 41. Footnote 26 See GD2-106 to 112. Footnote 27 See GD2-81 to 83. Footnote 28 See GD1-10 to 14 and GD2-79. Footnote 29 See GD10. Footnote 30 See Inclima v Canada (Attorney General), 2003 FCA 117. Footnote 31 See Janzen v Canada (Attorney General), 2008 FCA 150. Footnote 32 See GD10.