Estate of A. B. v. Minister of Employment and Social Development

Estate of A. B. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2015-11-16 Neutral citation 2015 SSTGDIS 126 Reference number GP-13-2396 Member Raymond Raphael Division General Division Decision Appeal allowed Decision Content On this page Persons in attendance Introduction The law Issue Background Application materials Oral evidence Medical evidence Submissions Analysis Conclusion Reasons and decision Persons in attendance J. B.: Appellant’s husband and executor P. B.: Appellant’s son A. O.: Interpreter: Ukrainian Introduction [1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on October 9, 2012. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal) on October 16, 2013. [2] The Appellant passed away on March 6, 2014 and the appeal is being continued on behalf of her estate. J. B., the Appellant’s widower, is the executor of her estate and has confirmed that he wishes to continue the appeal on behalf of the estate (see GD6). [3] The hearing of this appeal was by Teleconference for the following reasons: The Appellant will be the only party attending the hearing; The issues under appeal are complex; There are gaps in the information in the file and/or a need for clarification; and, 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. The law [4] 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). [5] 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. [6] 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 [7] Having regard to the Appellant’s Record of Earning (ROE) and the applicable Child Rearing Provisions (CRP) the Tribunal finds that the Appellant’s MQP is December 31, 1997. [8] The Tribunal also finds that if the Appellant became disabled commencing in 2007, she has a potential pro-rated MQP of August 31, 2007. [9] In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before the December 31, 1997 MQP date, or alternatively, commending in 2007 and on or before the potential August 31, 2007 pro-rated MQP date. Background [10] The Appellant was 43 years old on the December 31, 1997 MQP date; she was 53 years old on the potential August 31, 2007 pro-rated MQP date. She was born in Poland and came to Canada in 1982. On March 16, 2014 she passed away from progressive supra nuclear palsy (PSP) and the appeal is being continued on behalf of her estate. Application materials [11] In the CPP disability questionnaire, signed on September 18, 2012, the Appellant indicated that she has a 5-year agricultural technologist diploma in Poland as well as a technical co-op practice certificate. She noted that she last worked in office work administration from September 25, 2005 until April 27, 2007; she stated that she stopped working because she was laid off due to a shortage of work shortage. She claimed to be disabled as of October 2007 and stated that PSP was the illness or impairment that prevented her from working. She described her impairments to include a lack of balance, swelling legs, problems with walking and eye movements, and decline in mobility. She noted that she fractured her foot in October 2007, and that all of her activities have declined since then. [12] A report dated July 26, 2012 from Dr. Jacyk, the Appellant’s family doctor, accompanied the CPP application. The report diagnoses PSP, osteoarthritis, and major depressive disorder. The relevant/ significant medical history includes a fracture of the left calcaneus and foot in October 2007; recurrent falls; fracture of right knee in July 2010; worsening gait; impairment of vision; and rigidity of limbs. The prognosis was guarded. Dr. Jacyk also noted that there will be a probable significant decline in the Appellant’s mobility, and that she is dependant on her spouse for her Activities of Daily Living (ADL). Oral evidence J. B.’s evidence [13] Mr. J. B. referred to the medical records in 1993 and 1995 which confirm that his wife required psychiatric treatment at that time. He believes that she was developing symptoms of PSP, but the medical knowledge concerning PSP was not very well developed at that time. He also believes that his wife was given the wrong evaluation for her illness at that time. [14] She was not taking the prescribed psychiatric medications because they weren’t working, and they caused her to become more sick, nervous, and aggressive. He tried to supervise his wife’s medications, but she was worse the day after she took the medications. His wife didn’t want to see doctors because they would always give her the same types of medications which made her worse. He stated that this is the reason why there are no medical records around December 1997. [15] When asked to describe his wife’s medical condition in December 1997, he stated that she couldn’t finish any housework that she started such as peeling potatoes or doing laundry. Her problems had started in 1993, and she was very upset because she didn’t know why she wasn’t able to do things. She was always late, and he often had to drive the children to school because they missed the bus since she was late in making their lunches. She always had to stop whatever she was trying to do and go to the bathroom. She didn’t go anywhere socially and was afraid to talk to people. He thought she just might be a slow person. She said, “I don’t know why I can’t do things…I don’t know why I am like this.” [16] In 2002 they got into an argument because she was very aggressive with the children, and he called 911 because he was worried about the children. When the police came they arrested her and kept her in jail for a week, even though he told them that she needed medical treatment. When she was released he had to supervise her medications; she got a little bit better and then started to get worse. They then started to treatment on their own through vitamins and this improved her life and she “begged to go to work.” [17] He stated that 2004 to 2007 were her best years because she was able to go to work and was happy. She just did “basic” work as a helper in a bakery and this was “amazing” for her. She was happy, started to do things at home, and there were fewer incidents. There was an incident with her supervisor in December 2013 and she was suspended for one day. In January 2014 she was told that there was a shortage work and she lost her job at the bakery. His wife was happy working at the bakery and he thinks the December suspension was a factor in her being laid off. [18] The layoff caused her to go into a depression and in 2004 she started to experience falls and vision problems. She didn’t want to go to doctors; and she would say she just missed a step which caused her to fall. He believes that her falls and vision problems were early signs of her developing PSP. They went to a rehab centre in the Bloor West Village where they gave her massages and vitamins. She improved but was still falling about once a month. She indicated that she wanted to go back to work, but not full time. She then started to work part-time hours doing simple things like stuffing fliers in envelops. She just sat in a chair and stuffed envelops, and the company was flexible about her hours and her being late. He had to drive her to and from work because she had problems with the steps on the bus. In April 2007 she was let go and her job was taken over by co-workers. [19] After April 2007 she started to look for other work by doing searches on the internet and through employment agencies; however, in June/July 2007 her condition deteriorated. She was falling more frequently, she had problems moving her legs, and her vision continued to deteriorate. She was falling at least once a week, but often she would fall and not tell him about it. He could see the bruises from her falls. In October 2007, she fell and fractured her left foot; he took her to the St. Joseph’s emergency department. After October 2007 there was more shaking and he didn’t allow his wife to go anywhere by herself. She wasn’t able to do housework and dropped dishes because her hands were shaking. [20] She was initially misdiagnosed with Parkinson’s and then diagnosed with PSP. There is no medication for PSP. She continued to deteriorate and passed away in March 2014. P. B.’s Evidence [21] He recalls that when they were children he noticed that his mother always took longer to do things. He remembers that when she was put on medications in the late 1990s, they seemed to “heighten” her other issues. They were often late for school because they missed the school buses when she didn’t make their lunches in time. She wouldn’t go out much because she didn’t feel comfortable. As time went on, things became worse: dinner was taking longer; she would break dishes; and she was always falling. He would often see the bruises from her falls. Medical evidence [22] The Tribunal has carefully reviewed all of the medical evidence in the hearing file. Set out below are those excerpts the Tribunal considers most pertinent. [23] On November 4, 1993 Dr. Swierczek, psychiatrist, reported that the Appellant is “having difficulties coping with everyday activities, having crying spells, neglecting herself, unable to make simple decision. [sic] She is tired most of the time and her mind is ‘empty’. At times she has been arguing with her husband. Her sleep is poor with frequent wakenings and bad dreams.” Dr. Swiercezek’s impression was that the Appellant was unable to give him an adequate history and her behaviour is dominated by intense anxiety. He suspected that her reality testing was poor. He also suspected that she may be suffering from psychosis given her high level of anxiety, disorganized behaviour, incoherent speech and lack of insight. [24] On July 27, 1995, Dr. Kostolowski-Kondysar, psychiatrist, at St. Joseph’s Health Centre reported that the Appellant was treated with psychotherapy by Dr. Jacyk, since she refused any medication. Dr. Kostolowski-Kondysar’s impression was that the Appellant presented with no well-defined vegetative symptoms, although she reported some impairment in her daily functioning, mostly in the form or poor concentration, slower actions, easy fatigability and low energy level. The provisional diagnosis was chronic post-traumatic stress disorder, spousal battery/abuse marital relationship problem, rule out psychotic disorder, and rule out major depression. [25] On November 24, 2000 Dr. Turner, psychiatrist, at St. Joseph’s Health Centre reported that the Appellant is “cognitively impaired having difficulty recalling past events and organizing them into sequence. Additionally, she has difficulty responding to questions.” The Appellant described being depressed since a few months after the birth of her son, and the time her grandmother died, and that there was a further deterioration in her condition after the death of her mother in 1997. She was not currently taking any medication. Dr. Turner diagnosed chronic major depression with cognitive impairment and possible post-traumatic stress disorder. He assessed a Global Assessment of Functioning (GAF) of 45, and indicated that her highest GAF in the past 12 months was 45 to 50. [26] On November 30, 2000 Dr. Turner, reported on his reassessment of the Appellant. Dr. Turner’s impression was as follows: Ms. A. B. is considerably disturbed. She manifests thought disorder involving form of thought and its content. She had a tendency to misinterpret the intentions of others. Cognitively she may have some difficulty with comprehension. There is also an element of depression. Nevertheless, Ms. A. B. appears to overall be able to manage her self-care and domestic duties including raising her children. However, there is concern that the children, being exposed to Ms. A. B.’s emotional disregulation, are at risk for being mentally and emotionally harmed. This will be assessed by the Catholic Children’s Aid Society. [27] Dr. Turner diagnosed psychotic disorder NOS, possible major depression, and possible post-traumatic stress disorder. He suggested a low dose antipsychotic instead of the anti- depressant he previously recommended. [28] On October 23, 2002, Linda Harrington, Child Protection Worker with the Catholic Children’s Aid Society advised Dr. Jacyk that they had completed their investigation concerning the Appellant’s ability to parent and that the family had agreed to work voluntarily with the Society for a six month period. [29] In an undated report, faxed in November 2002, Dr. Srinivasan, psychiatrist, reported that he had interviewed the Appellant at the College Park Court House during early October and that her charges are assault and the victim is her husband with whom she is currently living. The Appellant was in custody for a week and refused to take treatment. A week late she agreed to participate in treatment and was released on bail conditions. She had been seeing Dr. Srinivasan on a weekly basis. He noted that it is apparent that she is taking her treatment, and that the improvement was quite obvious in her presentation. [30] Dr. Srinivasan further reported as follows: Mrs. A. B. has been suffering from a major mental ill-ness for at least six to seven years, all attempts by her husband's part to get her treated has been futile. Mr. G. B. has taken over management of house hold in terms of laundry, cooking, cleaning etc. ... and he is unable to depend on his wife for any of those. He indicates that his wife often gets angry for no reason [and] accuses him of infidelity. He says that, often she pushes him and throws things as well. With treatment these …behaviours have subsided significantly. [31] A St. Joseph’s Hospital Emergency record on October 17, 2007 notes that the Appellant was admitted because of a lower limb-foot/ankle injury. [32] X-rays taken October 17, 2007 revealed a non-displaced fracture through the calcaneal body. [33] An ambulatory report from Dr. Elmarghy, orthopaedic surgeon, dated January 25, 2008 notes that three months had passed since the Appellant’s calcaneus fracture and that although she was healed, she was still limping and swelling. [34] An ambulatory report from Dr. Elmarghy dated July 3, 2010 notes that the Appellant’s chief complaint was right knee pain which had begun with a fall two years ago. [35] An ambulatory report from Dr. Elmarghy dated August 17, 2010 notes that the Appellant was seen three months after a right knee injury and that she is getting around on crutches and has been strictly nonweightbearing. [36] A clinical note from Dr. Jacyk dated October 3, 2011 indicates that the Appellant doesn’t know why she fell and that she was complaining about a loss of balance. [37] On December 12, 2011, Dr. Rewa, cardiologist, diagnosed Parkinson’s disease. [38] On January 5, 2012 Dr. Chepesiuk, neurologist, diagnosed PSP. [39] On April 4, 2012 Dr. Chapesiuk, reported that the Appellant is rapidly declining from PSP. [40] On August 27, 2012 Dr. Marras, a neurologist with the Morton & Gloria Shulman Movement Disorders Centre reported that the Appellant presented with severe balance difficulty and slowness for one year, and that the onset of her symptoms was before that but her husband was unsure how long. Dr. Marras confirmed the diagnosis of PSP. [41] On March 5, 2013 Dr. Jacyk reported that the Appellant has suffered from a severe and prolonged mental illness dating back to 1993. She was initially diagnosed as chronic post- traumatic stress disorder with possible psychotic disorder. She was assessed in 1993, and then in 1995. In 2000 she was diagnosed with chronic major depression with cognitive impairment. In 2002 she was assessed for physical abuse towards her husband. She was resistant to taking medication but responded to treatment as noted in Dr. Srinivasan’s November 2002 report. [42] A discharge summary dated February 26, 2014 by Dr. Gutman, from the St. Joseph’s Health Centre, notes that the Appellant has a history of post-traumatic stress disorder; major depression with psychosis in 2000; fractured calcaneus in 2007; undisplaced right lateral tibial fracture in July 2010; vitamin D deficiency; osteoporosis; treatment for H pylori in 2000; chronic leg edema; and PSP diagnosed in March 2012. [43] On September 3, 2015 Dr. Mackay, form the Healing Source Chiropractic & Wellness Centre reported that the Appellant began care in their clinic on September 10, 2005 and that her presenting complaint was neck and lower back pain. Employment Questionnaires [44] An Employment Questionnaire from X Bakery dated August 14, 2013 indicates that the Appellant worked full time as store help from February 20, 2003 until January 9, 2004. She earned a total income of $18,682 during that period. She stopped working because she was laid off. She worked 42 hours per week and never worked on a graduated work schedule. [45] An Employment Questionnaire from Industrial Temporary Solutions dated August 8, 2015 indicates that the Appellant worked in general labour warehouse work from September 27, 2005 until April 28, 2007, and that she stopped working because her assignment was completed. The Appellant was a temporary worker, working 17-18 hours per week for $10 per hour. She never worked on a graduated work schedule and her attendance was good. Submissions [46] Mr. J. B. submitted that the Appellant qualifies for a disability pension because: She was incapable of pursuing any occupation due to her severe and prolonged and continuous mental disability since 1993; The medical evidence confirms a severe and ongoing psychiatric disability going back to 1993; Medical knowledge concerning PSP is very limited, and he believes her symptoms from PSP go back to 1993 and that she may have been misdiagnosed by the psychiatrists. [47] The Respondent submitted that the Appellant does not qualify for a disability pension because: The Respondent acknowledges that the Appellant was incapable of working when she applied for CPP disability, but submitted that the evidence does not establish that she was precluded from working as of her December 1997 MQP and continuously thereafter, or within her pro-rated August 2007 MQP; Although the Appellant had psychiatric issues both prior to and subsequent to her December 1997 MQP, she was able to work and recorded substantially gainful earnings after the MQP; There is no psychiatric information between1995 and November 2000, and the Appellant recorded substantially gainful earning of $17,184 in 2003 and $12,387 in 2006, which is several years after he December 1997 MQP; Dr. Jacyk provided copies of his handwritten progress notes spanning August 1999 to May 2005. There are no visits recorded related to her December 1997 MQP and no visits with respect to her possible pro-rated August 2007 MQP. The note in August 1999 indicates that her previous visit was February 13, 1996; In her disability questionnaire the Appellant noted that she stopped working in April 2007 because she was laid off, and she reported that she became disabled in October 2007. This coincides with her fracturing her ankle/foot which is after the August 2007 pro-rated MQP; Although she was diagnosed with a significant neurological condition in 2012, the evidence does not support that this contributed to her inability to work as of December 31, 1997 or as of her possible pro-rated August 2007 MQP. Analysis [48] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability on or before the December 31, 1997 or, alternatively, commencing in 2007 and on or before August 31, 2007. Severe [49] The statutory requirements to support a disability claim are defined in subsection 42(2) of the CPP Act which essentially says that, to be disabled, one must have a disability that is "severe" and "prolonged". A disability is "severe" if a person is incapable regularly of pursuing any substantially gainful occupation. A person must not only be unable to do their usual job, but also unable to do any job they might reasonably be expected to do. A disability is "prolonged" if it is likely to be long continued and of indefinite duration or likely to result in death. Guiding Principles [50] The following cases provided guidance and assistance to the Tribunal in determining the issues on this appeal. [51] The burden of proof lies upon the Appellant to establish on the balance of probabilities that on or before December 31, 1997 or, alternatively, commencing in 2007 and or before August 31, 2007, she was disabled within the definition. The severity requirement must be assessed in a "real world" context: Villani v Canada (Attorney General, 2001 FCA 248. The Tribunal must consider factors such as a person's age, education level, language proficiency, and past work and life experiences when determining the "employability" of the person with regards to his or her disability. [52] It is the Appellant's capacity to work and not the diagnosis of her disease that determines the severity of the disability under the CPP: Klabouch v. Canada (MSD), [2008] FCA 33. [53] It is a question of fact as to when a disability begins and when it becomes severe. In some cases the severity may occur in an instant. In other cases, it may take months or years for the disability to become severe as defined by the CPP. Further, a person may have a severe disability and not realize it because they are immobilized by other causes: Forrester v MHRD (November 3, 2003) CP 20789 (PAB). Application of Guiding Principles December 31, 1997 MQP [54] The initial determination to be made is whether the Appellant has established a severe disability on or before December 31, 1997, and continuously thereafter. [55] Although there is evidence to support significant mental health problems prior to December 1997, the Appellant recovered sufficiently to be able to return to gainful employment during the period from February 2003 to April 2007. As the Klabouch decision, supra, indicates, it is capacity to work and not the diagnosis of her disease that determines the severity of the disability. The Tribunal noted the oral evidence that the years between 2004 and 2007 were her best years and that she was able to go to work. This is confirmed by the Employment Questionnaires (see paragraphs 44 & 45, supra) as well as the ROE which indicates earnings of $17,184 in 2003 and $12,387 in 2006. [56] The Tribunal finds that the evidence does not establish, on the balance of probabilities, a severe disability on or before December 31, 1997 and continuously thereafter. Pro-rated August 31, 2007 MQP [57] Since the Tribunal has found that the Appellant has not established a severe disability as of the December 31, 1997 and continuously thereafter, it must also determine whether the evidence establishes a severe disability commencing in 2007 and on or before the potential August 31, 2007 pro-rated MQP. There is no dispute that the Appellant was severely disabled as of the time she applied for CPP disability. [58] S. 19 of the CPP allows proration for the year the contributory period ends because of disability. In this case, the Appellant must establish that the onset of her severe disability was between January 1, 2007 and August 31, 2007. [59] Although the Appellant had significant limitations as of January 1, 2007, she was not severely disabled as of that date and she was able to continue working on a regular part-time basis until she was laid off in April 2007. [60] The Respondent relies on the Appellant’s statement in her CPP disability questionnaire that she became disabled in October 2007 (which is after the pro-rated MQP) when she fell and fractured her left ankle. On this issue, however, the Tribunal considered and accepted the oral evidence (see paragraph 19, supra) that her condition started to deteriorate in June/July 2007 and that as of that time she was no longer able to work. [61] As the Forrester decision, supra, indicates, it is a question of fact as to when a disability begins and when it becomes severe. The Tribunal is satisfied that although the Appellant had significant longstanding limitations, her disability did not progress to severe until June 2007. At that time she was falling more frequently, she had problems moving her legs, and her vision had deteriorated. This was in addition to her already longstanding mental health and emotional issues, and her history of unexplained falls. The Tribunal is satisfied that as of that time she lacked the regular capacity to pursue any form of gainful employment (even the part-time employment that she had pursued up to April 2007) on a reliable and predictable basis. [62] The Tribunal finds that the Appellant has established, on the balance of probabilities, a severe disability commencing in 2007 and on or before August 31, 2007. Prolonged [63] Since the Tribunal found that the disability is severe, it is must also making a finding on the prolonged criteria. [64] The evidence establishes that the Appellant’s disabling conditions were long standing, that they continued to deteriorate, and that they tragically resulted in her death. Conclusion [65] The Tribunal finds that the Appellant had a severe and prolonged disability in June 2007, when her condition deteriorated and she was no longer able to continue to search for work. 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 October 2012; therefore, the Appellant is deemed disabled in July 2011. According to section 69 of the CPP, payments start four months after the deemed date of disability. Payments will start as of November 2011. [66] The appeal is allowed.