CR v Minister of Employment and Social Development

CR v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2024-07-09 Neutral citation 2024 SST 798 Reference number AD-23-995 Member Neil Nawaz Division Appeal Division Decision Appeal dismissed Subjects Appeal Division - De Novo - Dismissed CPP - Disability - Severe CPP - Disability - Severe - Efforts to work - Substantially gainful Decision Content Citation: CR v Minister of Employment and Social Development, 2024 SST 798 Social Security Tribunal of Canada Appeal Division Decision Appellant: C. R. Representative: F. M. Respondent: Minister of Employment and Social Development Representative: Dylan Edmonds Decision under appeal: General Division decision dated August 14, 2023 (GP-21-2469) Tribunal member: Neil Nawaz Type of hearing: Teleconference Hearing date: June 20, 2024 Hearing participants: Appellant Appellant’s representative Respondent’s representative Decision date: July 9, 2024 File number: AD-23-995 On this page Decision Overview Issue Analysis Conclusion Decision [1] I am dismissing this appeal. The Appellant is not entitled to a Canada Pension Plan (CPP) disability pension. Overview [2] The Appellant is a longtime employee of X. She has a history of back pain, among other medical conditions, and is now 48 years old. In May 2021, she applied for a CPP disability pension, claiming that she could no longer work because of a variety of medical conditions, including fibromyalgia, scoliosis, bursitis, tendonitis, depression, and anxiety.Footnote 1 [3] The Minister of Employment and Social Development refused the application after determining that the Appellant did not have a severe and prolonged disability. The Minister based its decision on, among other things, the fact that the Appellant was still working at X at the time of her application. [4] The Appellant appealed the Minister’s decision to the Social Security Tribunal. She maintained that, even though she was disabled, she had no choice but to keep on working. [5] The Tribunal’s General Division held a hearing by videoconference and dismissed the appeal. It found that, while the Appellant had limitations, they didn’t prevent her from pursuing substantially gainful employment. It also found that X did not meet the conditions to be deemed a so-called “benevolent employer.” [6] The Appellant then applied for permission to appeal to the Appeal Division. In November 2023, one of my colleagues on the Appeal Division granted the Appellant permission to appeal. Last month, I held a hearing to discuss her claim in full. Issue [7] For the Appellant to succeed, she had to prove that, more likely than not, she had a severe and prolonged disability during her coverage period. A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.Footnote 2 A claimant isn’t entitled to a disability pension if they are regularly able to do some kind of work that allows them to earn a living. 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 The disability must be expected to keep the claimant out of the workforce for a long time. [8] The parties agreed that the Appellant’s coverage will end on December 31, 2025.Footnote 4 My job was to decide whether the Appellant had a severe and prolonged disability as of the hearing date. Analysis [9] I have applied the law to the available evidence and concluded that the Appellant is not entitled to the CPP disability pension. The Appellant may suffer from chronic pain and depression, but that doesn’t mean she has a severe and prolonged disability. The Appellant does not have severe and prolonged disability [10] Claimants for disability benefits bear the burden of proving they have a severe and prolonged disability.Footnote 5 I have reviewed the record, and I have concluded that the Appellant did not meet that burden according to the test set out in the Canada Pension Plan. While the Appellant is subject to some functional limitations, I couldn’t find enough evidence to suggest that they rendered her incapable of work. [11] In her application for benefits, the Appellant claimed to have been disabled since 2020. She disclosed that, as she aged, her condition had progressed, causing increased pain, exhaustion, and anxiety. She said that she was easily distracted and prone to losing her train of thought. She rated all of her physical abilities as “fair” to “poor.”Footnote 6 [12] The Appellant testified that she works at X’s customer service desk. She said that widespread pain makes it difficult for her to carry out her duties: she can’t stand or sit for very long; she has to change positions often; she can’t lift heavy items such as returned merchandise. If things become overwhelming, she’s allowed to take breaks away from the counter. She relies on the help of her co-workers; all her fellow employees support each other. [13] The Appellant said that she has no choice but to cope with the pain. She said that she continues to work because she needs the money to survive. However, while I understand that the Appellant feels disabled, I must base my decision on more than just her subjective view of her capacity.Footnote 7 In my view, the evidence, looked at as a whole, suggests that she is regularly capable of substantially gainful employment. [14] I base this conclusion on the following factors: The medical evidence is less than compelling [15] The Appellant has seen several doctors, but their reports do not strongly indicate disability as defined by the Canada Pension Plan. Dr. Koole was the Appellant’s family doctor for many years. In May 2021, he completed a medical questionnaire to accompany her CPP disability application.Footnote 8 In it, he diagnosed the Appellant with degenerative disc disease and myofascial pain syndrome, and he outlined her functional limitations, which included reduced tolerance to any sort of sustained physical activity. However, Dr. Koole also indicated that the Appellant was working 25 hours a week and was capable of sedentary tasks. The Appellant was unhappy that Dr. Koole declared her fit for work, and she admitted that his lukewarm support for her disability application played a part in her decision to change doctors. In November 2022, her new family physician, Dr. Sewchand, wrote that the Appellant had daily moderate to severe pain from fibromyalgia, bursitis, and temporomandibular dysfunction. He added that she took Oxycocet daily and struggled to get through four hours of shift work.Footnote 9 Later, in October 2023, Dr. Sewchand wrote that the Appellant’s fibromyalgia had impaired her ability to carry out even the most basic daily tasks and rendered her incapable of substantially gainful employment.Footnote 10 In a follow-up report, he added that the Appellant was experiencing heightened physical symptoms, including pain and numbness in her left wrist, thigh, knee, and foot. He also noted that antidepressants had produced unwanted side effects.Footnote 11 In May 2014, the Appellant saw a pain specialist, Dr. Ghouse, for chronic back pain, which he treated, unsuccessfully, with Lidocaine injections.Footnote 12 Seven years later, in January 2021, Dr Ghouse saw the Appellant again, this time for pain in the right hip and right thigh and in the left shoulder with radiation to the left arm. Dr. Ghouse noted that her symptoms got worse when she did heavy work or lifting, although she reported some relief with Advil, icing, and narcotics.Footnote 13 The Appellant has also seen chiropractors for her neck and back pain. Both Dr. Frisina, who treated her from 1997 to 2004, and Dr. Prosia, who treated her from 2009 to 2013, examined the Appellant after long absences. In January 2023, Dr. Frisina wrote that pain greatly affected her activities of daily living and declared her qualified for the CPP disability pension.Footnote 14 In November 2022, Dr. Prosia wrote that severe pain prevented the Appellant from working.Footnote 15 [16] On the whole, the available medical reports present a mixed picture. They leave no doubt that the Appellant experiences widespread joint pain, but they also indicate that she has responded to treatment — at least to some extent. It also appears that at least three of her treatment providers have had little contact with the Appellant in recent years. I question whether Drs. Ghouse, Frisina, and Prosia have anything valuable to say about the Appellant’s current condition after conducting what amount to one-time assessments. I also question why, if the Appellant is impaired to the degree that she claims, she has not received more ongoing treatment over the years. [17] Above all, there is the fact that Dr. Koole, the Appellant’s former family doctor, found her capable of light work for what seems an obvious reason: she maintained a part-time job at the time of her application for CPP disability benefits. This weighed heavily in my decision, as did the fact that the Appellant’s earnings from X exceeded the substantially gainful threshold several years in a row. The Appellant has recorded substantially gainful earnings [18] Whatever the Appellant’s condition, the fact remains that she recorded significant earnings during the period when she claimed to be disabled. She testified that she has been employed by X for more than 20 years. She said that she generally works from 4:00 pm to 9:00 pm five days per week, although her shifts vary depending on her health and on the store’s staffing needs. She also said that she currently earns about $21 an hour. [19] Section 68.1 of the Canada Pension Plan Regulations associates “substantially gainful” with a specific dollar value, depending on the year. Any amount earned over the maximum annual amount that a person can receive as a disability pension is deemed to be substantially gainful. The Appellant’s record of earnings indicates that she earned the following amounts:Footnote 16 Year Reported income Maximum disability amount 2019 $23,380 $16,354 2020 $20,910 $16,667 2021 $26,220 $17,025 2022 $21,227 $17,610 [20] It’s obvious that the Appellant’s earnings significantly exceeded the maximum allowable amount for several years. I don’t have complete numbers for 2023, but the Appellant testified that she continued to work her usual hours, except for a five-month period in which she was recovering from gallbladder surgery.Footnote 17 [21] Despite her taking sick leave, the Appellant’s employment income for 2023 exceeded the maximum disability amount for the fifth year running. I say this because the Appellant submitted a biweekly earnings statement dated November 11, 2023, indicating year-to-date earnings totalling $19,586.Footnote 18 When extrapolated to December 31, that amount was equivalent to roughly $22,700, once again surpassing the threshold, which was set at $18,203 for 2023. [22] So, according to the regulations, the Appellant’s occupation is substantially gainful. But is the Appellant also “regularly” incapable of pursuing that occupation, as required under the CPP’s definition of severity? In my view, she is not. [23] The Appellant testified that, to keep her benefits, she had to work at least 16 hours per week on average. She said that she sometimes managed to work up to 25 hours per week, but I suspect that was more the norm than the exception. Her last earnings statement before she went on sick leave indicates that she had year-to-date gross wages of $14,615 for the period ending July 22, 2023.Footnote 19 That figure, divided by the Appellant’s hourly rate of $20.70, yields 706 hours of labour to that date, or an average of 24 hours per week during the first 29 weeks of 2023. That is a significant number of hours to be working week after week. [24] The Appellant emphasized the heavy physical and mental toll exacted by her job. She testified that she is notified of upcoming shifts through an intercompany app. She said that she often doesn’t feel up to coming in and claimed that she is never penalized for refusing shifts or calling in sick. She maintained that she always feels completely exhausted after each shift but has no choice to keep working because she needs to support herself. [25] According to the philosophy that governs the CPP, claimants are either regularly capable of a substantially gainful occupation or they are not. The legislation makes no allowances for how difficult a claimant finds a job; it only cares about whether a claimant is able to perform the job on a sustained basis and whether that job is substantially gainful. [26] I recognize that the Appellant pushes herself to the limit. However, the fact remains that she has sustained a reasonably remunerative job for many years on a fairly consistent schedule. The Appellant insisted that she is unable to offer predictable performance yet, more often than not, she manages to show up for work when needed. Despite her impairments, she has kept her job for many years and appears to be in no danger of losing it. I can only assume that, if she were as unreliable an employee as she says she is, X would have dispensed with her services long ago. X is not a “benevolent employer” [27] The Appellant’s above-threshold earnings do not decide the matter by themselves, but they create a presumption that the Appellant is regularly capable of a substantially gainful occupation. The Appellant attempted to rebut this presumption by arguing that her employer did not hold her to the normal standards of the labour market. However, I don’t think she succeeded. [28] The Appellant insisted that her job as a retail associate at X is not evidence of capacity. She works at her store’s customer service desk performing tasks such as accepting returns, arranging deliveries, and processing applications for credit cards. She generally does not have to walk the floor or lift heavy objects. She has opportunities to occasionally sit down. She can count on her co-workers to help her if needed. [29] The Appellant said that, even with these advantages, she finds her job hard: she is always tired and in pain; she often misses shifts and is late for work; she is spent by the time she gets home. Still, she doesn’t appear to benefit from special accommodations unavailable to her colleagues. Like others, she has to stand at a counter for extended periods; like others, she gets two breaks during a five-hour shift. During slow periods, she gets to sit down off to the side, but that is a perk available to all employees in her department. [30] There is a body of case law that says evidence of a benevolent employer must be taken into account where a pension claimant remains in the workforce despite their claimed disability.Footnote 20 The Canada Pension Plan contains no reference to benevolent employers, but a case called Atkinson also says that accommodating an employee does not necessarily mean that an employer is benevolent. For an employer to be found benevolent, the accommodation must go beyond what would be expected in the broader employment market. [31] In Atkinson, the Federal Court of Appeal held that a finding of “benevolence” depended on a number of relevant criteria, including: (i) whether the claimant’s work was productive; (ii) whether the employer was satisfied with the claimant’s work performance; (iii) whether the work expected of the claimant was significantly less than the work expected of other employees; (iv) whether the claimant had received accommodations that went beyond what was required of an employer in a competitive marketplace; and (v) whether the employer had experienced hardship as a result of those accommodations. [32] The lawrequiresdisability claimants to show that their employers are benevolent; it does not require the Minister to prove that employers are not benevolent.Footnote 21 Put another way, employers are presumed, until proven otherwise, to be getting fair market value in return for the salary or wages they pay to their employees. [33] In this case, there was little evidence to suggest that X is receiving less than fair market value for its money. I asked the Appellant whether she had ever received negative feedback about her performance, and she replied, “Not really, although I once got a written warning for lateness.” [34] The file includes a letter from X’s human resources manager saying that, due to her medical condition, the Appellant missed 34 shifts over a ten-month period for a total of 148 out of 895 hours, or 16.5 percent of her scheduled hours.Footnote 22 That is a significant number, but the letter didn’t say how it compares with other employees in a company where shift workers are expected to be “on call” and available on relatively short notice. [35] The letter also noted that the Appellant’s position requires “standing and walking on hard surfaces, some lifting and computer work.” It concluded, “As her employer, we are happy to accommodate her needs.” But the letter didn’t say how X accommodates those needs or whether such accommodations go beyond what’s required of an employer in a competitive marketplace. [36] It is difficult to argue that X is benevolent in a literal sense. Multinational corporations are not known for their generosity to their wage-earning employees, and I heard nothing to suggest that the Appellant’s supervisors are her friends or that they have any particular goodwill toward her. What I heard instead was that the Appellant’s current position happens to be particularly well-suited to a person with her specific impairments. It appears to be a relatively low-impact, low pressure job, one that the Appellant is able to do on a sustained basis. But that doesn’t mean her job is a form of charity, nor does it mean X is experiencing hardship by continuing to employ her. Conclusion [37] The Appellant suffers from physical and psychological impairments, but they do not prevent her from maintaining a part-time job at a substantially gainful wage. For that reason, I am satisfied that the Appellant does not have a severe and prolonged disability. [38] The appeal is dismissed. Footnotes Footnote 1 See Appellant’s application for the CPP disability pension dated May 17, 2021, GD2-28. Footnote 2 See Canada Pension Plan, section 42(2)(a)(i). Footnote 3 See Canada Pension Plan, section 42(2)(a)(ii). Footnote 4 Under section 44(2) of the Canada Pension Plan, a “minimum qualifying period” is established by making threshold contributions to the CPP. The Appellant’s CPP contributions are listed on her record of earnings at GD2-6 and GD11-4. Footnote 5 See Canada Pension Plan, section 44(1). Footnote 6 See the Appellant’s application for CPP disability benefits dated May 17, 2021, GD2-28. Footnote 7 A CPP disability claimant has to provide a report of any physical or mental disability, including its nature, extent and prognosis; the findings upon which the diagnosis and prognosis were made; any limitation resulting from the disability, and any other pertinent information. See section 68(1) of the Canada Pension Plan Regulations. In Warren v Canada (Attorney General), 2008 FCA 377, the Federal Court of Appeal said there must be some objective medical evidence of a disability. See also Canada (Attorney General) v Dean, 2020 FC 206. Footnote 8 See CPP medical report completed on May 9, 2021 by Dr. J. Koole, general practitioner, GD2-72. Footnote 9 See report dated November 15, 2022 by Dr. Lionel Sewchand, general practitioner, GD6-7. Footnote 10 See Dr. Sewchand’s letter dated October 10, 2023, AD1-3 and AD1-5. Footnote 11 See Dr. Sewchand’s letter submitted on December 9, 2023, AD3-1. Footnote 12 See report dated May 23, 2014 by Dr. Ali Ghouse, physiatrist, GD2-86. Footnote 13 See Dr. Ghouse’s report dated January 26, 2021, GD2-83. Footnote 14 See report dated January 11, 2023 by Dr. Angelo Frisina, chiropractor, GD6-6. Footnote 15 See report dated November 28, 2022 by Dr. David Prosia, chiropractor, GD6-10. Footnote 16 See the Appellant’s updated record of earnings, GD11-4. Footnote 17 The Appellant testified that she was on Employment Insurance sick benefits from between August 2023 and January 2024. This account was partially corroborated by EI benefit statements from August 20, 2023 to November 5, 2023 — see AD3-10. Footnote 18 See the Appellant’s X earnings statement dated November 11, 2023, AD3-9. Footnote 19 See the Appellant’s X earnings statement dated July 22, 2023, AD3-6. Footnote 20 See Atkinson v Canada (Attorney General), 2014 FCA 187. The principles from Atkinson were recently reinforced by a case called Canada (Attorney General) v Ibrahim 2023 FCA 204. Footnote 21 See Atkinson v Canada (Attorney General), 2014 FCA 187. Footnote 22 See letter dated October 17, 2022 by Erin Copeland, human resources manager, X Canada, GD6-3.