C. V. v. Minister of Employment and Social Development

C. V. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2017-05-12 Neutral citation 2017 SSTGDIS 56 Reference number GP-16-1634 Member Jane Galbraith Division General Division Decision Appeal allowed Decision Content On this page Persons in attendance Introduction The law Issue Evidence Submissions Analysis Conclusion Reasons and decision Persons in attendance C. V. – the Appellant Shanna Mittleman – the Appellant’s representative C. P. – the Appellant’s sister as witness A. M. – the Appellant’s daughter as witness. Introduction [1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on August 11, 2015. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal). The Respondent filed a Notice of Readiness on October 21, 2016 and the Appellant filed a Notice of Readiness on February 19, 2017 [2] The Appellant has worked in administrative type jobs for all of her working life. She started to experience pain in her right hand in January 2014, which has increased in severity and also affected her left hand and arm since that time. The Appellant has not worked since, except for a modified work trial in March 2014, which the Appellant was not able to continue due to pain. Despite ongoing treatment her condition has not improved. [3] The hearing of this appeal was by videoconference for the following reasons: The method of proceeding is most appropriate to allow for multiple participants. Videoconferencing is available within a reasonable distance of the Appellant’s home. There are gaps in the information in the file and/or a need for clarification. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit. [4] The Tribunal decided that the Appellant was disabled as defined in the CPP on or before the MQP date. The reasons for that decision follow. The law [5] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must: a) be under 65 years of age; b) not be in receipt of the CPP retirement pension; c) be disabled; and d) have made valid contributions to the CPP for not less than the minimum qualifying period (MQP). [6] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP. [7] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or she is 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. Issue [8] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 2017. [9] However in this case as the MQP is in the future, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before the date of the hearing. Evidence [10] The Appellant was 54 years old on the day of the hearing. She has Grade 12 education. The Appellant had lived in an apartment independently prior to her injury. She lived an active work and personal life with no medical conditions. [11] The Appellant describes that her whole work life has been doing administrative work, which included customer service, sales, and computer work including data entry. She indicates that they were generally busy and demanding positions. [12] The Appellant’s last job was working in customer service and the order desk for J.’s Family Foods. She worked there from February 2008 to January 2014. She stopped working there because she developed pain in her right hand that affected her fingers, wrist, hand, forearm and elbows. [13] The Appellant started physiotherapy immediately after her pain began and went three times a week for 6 months. The use of the TENS machine actually caused the Appellant more pain and it was stopped being used as one of the treatment modalities. Physiotherapy did not provide any significant improvement so this treatment ended. [14] On her own initiative the Appellant started to use Acupuncture in 2016, and has continued to use this therapy. She reports there is a little improvement in her pain, which she is glad to accept. It has however not made any improvement to her functional abilities. [15] She attempted a return to work in March 2014 on modified duties. She explains that by this point her pain had also extended into her left arm, which was being used much more. Her modifications were directed at her right arm. This was for ½ days and they added extra duties that were not appropriate for her to do. She wore her brace to work but after 2 weeks stopped due to the increased pain and swelling in her hands and arms. [16] By this time the Appellant was requiring and receiving assistance from her daughter and her sister. They helped her to reorganize many aspects of her home to make it easier for her to do activities around the house. They did batch cooking, moved the microwave down for easier access, did the Appellant’s housework and did her grocery shopping for her when they were doing their own. This continued until June 2015 when the Appellant moved into her daughter’s apartment. The Appellant has not been able to do much since that time to help with the household tasks in the apartment. The Appellant’s sister testified to the abundant help that she needed to provide to her sister from the time she started having pain. This help only increased as time went on as her condition did not improve. [17] Dr. Bahrami, rheumatologist, saw the Appellant in May 2014 and she reported that the Lyrica he had prescribed had been helpful for her pain and sleep. It did not totally eliminate the pain. He diagnosed her with chronic myofascial pain involving bilateral arms and hands. ) GD2- 86) He also gave the Appellant a cortisone injection in her thumb in February 2015 but states that previous injections to her elbows had not been beneficial. (GD2-75) [18] The Appellant states that many medications had been tried over the last three years. These include anti-inflammatories, Lyrica, Cymbalta, Nortriptyline, compounded creams and over the counter creams. She gave each medication a trial of at least a month but found the side effects of all of them outweighed the limited benefit so she stopped these medications. She had headaches, felt in a fog, dizziness and on Nortriptyline she felt like a zombie. She developed a rash from a xylocaine cream and it was a painful process to rub the creams on her arms. [19] Dr. Margaliot saw the Appellant in October 2014 at the Trillium Health Clinic. She had been seen here before in August 2014. She was discharged at this visit and it was noted that her symptoms and physical findings were not consistent with one diagnosis. This conclusion was reached, as the Appellant had not been working for 8 months and done nothing with her hands with no improvement. Dr. Margaliot opined the Appellant was not suitable to perform any kind of manual labour with her hands and it was possible those restrictions would be permanent. (GD2-73) [20] The Appellant’s pain has increased since she stopped working. It significantly increases with the use of her fingers. She describes a constant burning pain up her arms with the right arm being generally weaker that the left. She had tingling in her elbows. Her forearms ache and if she does any movement with her hands and arms for more than a short period of time her pain is exacerbated and can create a flare-up that lasts from 20 min to 3 hours. She has limited ability to carry any object or hold objects for long. She often uses two hands and has to use plastic cutlery, plates and cups, as they are lighter. Her sleep is disrupted nightly and she often has to nap during the day to catch up. She finds holding a book to read an activity that she can do for a short period of time. [21] Dr. Schofield saw the Appellant at the Toronto Western Hospital Hand Program in June 2015. The Appellant had received physiotherapy, cortisone injections and medications that were generally not effective prior to this assessment. The Appellant had reported she moved in with her daughter for financial reasons. She stated that she was independent with activities of daily living but these were associated with pain. Examination showed no deformities or muscle atrophy in the hands or forearm. The Appellant was referred for a hand therapy assessment. (GD2-61) [22] Dr. Schofield saw the Appellant several times in 2015 and 2016. He opines in November 2016 that she would be capable of only light, non-repetitive and intermittent activity involving her upper extremities. He anticipates that her symptoms will continue into the foreseeable future. (GD4-117) [23] Despite a clinical neurological examination being normal in June 2015, diagnostic testing shows evidence of a mild ulnar neuropathy, but did not explain her symptoms. The Appellant described the pain, which has been variable in its characteristics. These included tightness, heaviness or a sense of burning or sizzling. The pain she has had at the base of her thumb has responded to cortisone injections. (GD2-63) [24] At the Hand clinic in June 2015 the Appellant relayed an improvement in her symptoms, which she attributed to a reduction in activity since she has moved in with her daughter. She continues to be seen in the hand clinic for monitoring. She has used many devices suggested by them. These include several different types of splints and arm braces over the years including elbow pillows. [25] The Appellant’s daughter testified that her mother was not able to do many tasks around the home at all. She knew that she would watch a lot of TV and occasionally read a book for a short time as just turning pages and holding the book was difficult and caused increased pain. She observes that her mother often is holding her arms very still as movement can also increase the pain. Her mother has to use plastic and light dishes and cutlery as using heavier items increase her pain and make it difficult for her to hold. [26] All activities that involve her fingers and arms in any way result in pain. The Appellant explains that she has to make a conscious decision every time she moves because it will cause an increase in pain. So everything the Appellant does is well thought out. Dressing and general hygiene is managed by the Appellant but takes a lot of time and is not without an increase in pain. She performs all activities using the minimum of motions needed to do the task. The Appellant commented that all of this to go out to use a heated therapeutic pool may not be worth it in the end due to the pain and effort it took to get to the pool. [27] Dr. Piacentino completed the CPP medical form in July 2015. He has known the Appellant for 15 years. He notes the Appellant’s condition of bilateral lateral epicondylitis has not significantly improved since the onset 18 months previous. She has received physiotherapy, cortisone injections, used splints and multiple medications to improve her condition. She has also had consultations with a hand surgeon, neurologist, rheumatologist, physiatrist and a pain clinic but her symptoms have persisted. (GD2-57) [28] Dr. Blitzer, a rehabilitation and pain consultant evaluated the Appellant in February 2016 to determine if she meets the criteria for disability status. She describes her symptoms as not improving. He opines the Appellant has developed a chronic pain syndrome, which has interfered with her ability to function with even daily activities. The Appellant’s right arm was the initial symptom but this has progressed to involve the left arm now as well. She does not do much and when she does more activities she has a significant exacerbation. His belief was that the little amount of productive work the Appellant would be able to do would not be acceptable for a standard employer. He expects her disability to continue into the future. (GD1-36) Submissions [29] The Appellant’s representative submitted on her behalf that she qualifies for a disability pension because: Despite the Appellant’s significant work experience in administrative work it is not realistic that any employer would accept her significant limitations. There is no type of gainful employment that would accommodate her condition. There has been no opinion offered by any physician that the Appellant would be expected to be able to return to work. Dr. Blitzer actually opined that it is more likely her condition would deteriorate. There has been no meaningful improvement despite a 3 year break from work activities. [30] The Respondent submitted that the Appellant does not qualify for a disability pension because: In the absence of objective assessments from a functional capacity evaluation, it appears there is sufficient capacity to pursue job options that do not aggravate her symptoms. Dr. Blitzer’s opinion is recognized but in light of all the opinions and clinical evaluations his assessment does not describe a severe medical disability as defined under the CPP. The Appellant’s chronic pain has not been addressed by way of formal assessment, or required referrals to chronic pain programs and medication trials. The attempted a two week return to work but it aggravated her symptoms. The modified duties provided were not suitable as they involved repetitive tasks with her hands. Analysis [31] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before the date of the hearing. Severe [32] The Appellant was to the Tribunal, a convincing and credible witness who provided her testimony in a forthright manner with no obvious signs of exaggeration. Both of the witness provided additional information and confirmed what the Appellant had reported. The information provided by all the witnesses was consistent with the information provided to physicians in the course of her treatment. Medical condition - Chronic pain [33] In this case the Tribunal is reminded but not bound by Thawed v MHRD (December 3, 2003), CP 18204 (PAB), where it is written: “Chronic pain, chronic fatigue syndrome, and fibromyalgia are all conditions with a strong subjective component. These conditions affect each individual differently. The focus of the inquiry should be on the effect of the condition(s) on the particular individual in question.” [34] The Tribunal also notes but is not bound by the discussion of pain from G.B. v MHRSD, (May 27, 2010) CP 26475 (PAB) which states: Chronic pain cannot be proven by objective evidence and there is no medical test that can measure pain or take a picture of pain, and the main evidence that must be relied on is subjective evidence or the claimant’s verbal description of pain. [35] It is clear to the Tribunal that the Appellant’s main condition was pain in her fingers, hands and both arms which prevented her from working. This pain started in the right hand and arm and then affected her left arm due to its overuse. This has had a negative impact on every aspect of the Appellant’s life, which includes her personal life as well as employment. [36] The physicians treating the Appellant seemed to have some difficulty providing a diagnosis to their satisfaction. However they never questioned the Appellant’s complaints of pain or her descriptions of the limitations it caused. Her physicians have not suggested a chronic pain program but she has participated in numerous treatments and medications over the years with no significant improvement. She has also taken the initiative to try acupuncture and continues with that therapy. The effect of her pain and subsequent weakness of her hands and arms is given the most weight by the Tribunal. Functional abilities [37] In Ferreira v. AGC 2013 FCA 81 confirms for the Tribunal that the key question in these cases is not the nature or name of the medical condition, but its functional effect on the claimants ability to work. It also reinforces to the Tribunal that it is bound by the statutory definition of both disability and the time at which it must be shown to have existed. [38] The Appellant has increased pain with virtually any movement of her fingers and that increases the longer her fingers move. She has difficulty holding many items and often has to use two hands. Due to her weakness the lightest of items for eating or any activity are used to make the task easier to accomplish. She performs all activities using the minimum of motions needed to do the task. [39] The Appellant required an excessive amount of assistance from family members. This need necessitated the Appellant moving from her home to her daughter’s home. Prior to her pain she lived an independent and active life that was drastically changed by her condition. [40] The Appellant’s functionality is such that she would not be capable of making a contribution to even the most tolerant of employers in the workplace. She struggles to make a contribution to the household tasks in her daughter’s home. Because of her medical condition, she would be unreliable in her attendance. Work attempts [41] Where there is evidence of work capacity, a person must show that effort at obtaining and maintaining employment has been unsuccessful by reason of the person’s health condition (Inclima v. Canada (A.G.), 2003 FCA 117). [42] The Appellant did make an attempt to return to work on modified duties and a shortened workday. Even with these accommodations the Appellant experiences such increased pain and swelling that she was not able to continue for more than two weeks. [43] Detailed descriptions of the type of accommodations the Appellant has at home were provided by the Appellant and confirmed by her witnesses. The Appellant has great difficulty with the easiest and very common activities of daily living. It is clear to the Tribunal the Appellant did not have any work capacity at the time of the hearing. Real world context [44] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). This means that when deciding whether a person’s disability is severe, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. [45] The Appellant completed Grade 12, has no difficulties with English, can work with computers and has a long history of earnings. The Tribunal gave weight to the Appellant’s work history, which included more than 25 continuous years of earnings. One can reasonably assume that a person with this work history would not have left the workforce unless there was some considerable issue. [46] The Appellant worked in what would be described as a sedentary work environment for her entire work life. In a real world situation, despite the Appellant’s background and skills, her medical condition and limitations at the time would not allow her to return to any job. It is difficult for the Tribunal to conceive of a job that would not require some use of a person’s hands. The pain in her hands and arms is the main disabling condition and prevents her from doing even the most basic activities of daily living. [47] The Tribunal has carefully reviewed the medical reports and listened attentively to the evidence of the Appellant. The Tribunal finds that the Appellant has satisfied the Tribunal that on a balance of probabilities the Appellant does have a severe disability within the meaning of the Act at the time of her MQP. Prolonged [48] For the Appellant to qualify for a disability benefit, the Tribunal must be satisfied not only that the mental or physical disability is “severe”, but also that it is “prolonged.” To make such a finding, there must be sufficient evidence to establish that the disability is both “long continued” and “of indefinite duration”, or is likely to result in death. [49] An extensive evaluation of the Appellant in February 2016 by Dr. Blitzer indicated the Appellant’s condition had improved very little since her pain began. In fact her symptoms had progressed from just affecting one arm to now including both of her arms. [50] He suggested her prognosis for the future is guarded as she has had multiple therapeutic interventions as well as not improving over the last several years. [51] The Tribunal accepts the Appellant’s testimony that her ability to function in any area has not improved. There is no indication from the Appellant or any health care professional that improvement is expected. [52] Therefore the Tribunal agrees that there is little likelihood of the Appellant’s condition improving in the foreseeable future and accepts that the Appellant’s disability is long continued and of indefinite duration. Conclusion [53] The Tribunal finds that the Appellant had a severe and prolonged disability in March 2014, when she was not able to tolerate modified duties when she returned for a work trial.. For payment purposes, a person cannot be deemed disabled more than fifteen months before the Respondent received the application for a disability pension (paragraph 42(2)(b) CPP). The application was received in August 2015; therefore the Appellant is deemed disabled in May 2014. According to section 69 of the CPP, payments start four months after the deemed date of disability. Payments will start as of September 2014. [54] The appeal is allowed.