G. S. v. Minister of Employment and Social Development

G. S. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2019-09-26 Neutral citation 2019 SST 1289 Reference number GP-18-1332 Member Antoinette Cardillo Division Appeal Division Decision Appeal allowed Decision Content On this page Decision Overview Preliminary matters Issues Analysis Conclusion Decision The Appellant had a severe and prolonged disability in April 2016, when he stopped working. The disability pension is payable as of September 2016. Overview [1] The Respondent received the Appellant’s application for a Canada Pension Plan (CPP) disability pension on August 16, 2017.Footnote 1 The Appellant is 61 years old. He indicated on the Disability Benefits QuestionnaireFootnote 2 that he has tinnitus and back pain. He was a teacher from February 1999 to April 2016. The Respondent denied the application initially and on reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal). [2] To qualify for a CPP disability pension, the Appellant must meet the requirements set out in the CPP. In particular, the Appellant must have been found to be disabled under the CPP at or before the end of the minimum qualifying period (MQP). The calculation of the MQP is based on the Appellant’s contributions to the CPP. I find that the Appellant’s MQP ended [sic] on December 31, 2019. Preliminary matters [3] The Appellant began receiving a CPP retirement pension in April 2018. [4] The CPP states that, once a beneficiary starts to receive a CPP retirement pension, that beneficiary cannot apply or reapply, at any time, for a disability pension, except if the beneficiary applies in writing within six months after payment of the pension has started. [5] The six-month rule does not apply to the cancellation of a retirement pension in favour of a disability benefit where an applicant is deemed to have become disabled in or after the month for which the retirement pension first became payable. However, a person cannot be deemed disabled for payment purposes more than fifteen months before the Respondent received the application for a disability pension. [6] The effect of those provisions is that the CPP does not allow the cancellation of a retirement pension in favour of a disability pension where the disability application is made 15 months or more after the retirement pension started to be paid. In this appeal, the Appellant applied for a disability pension in August 2017, eight months before pension payments started in April 2018. Therefore, he must be found to be disabled under the CPP in or before March 2018. [7] However, the Appellant may be eligible for the new legislative provisions that came into effect on January 1, 2019, providing protection in the event of disability to CPP retirement pension beneficiaries who are disabled on or after the date on which their pension begins, but who are not yet 65. It is the post-retirement disability benefit (PRDB). Issues [8] The first issue to decide in this appeal is whether the Appellant was disabled in or before March 2018, and continuously afterward. [9] If the Appellant’s conditions were not severe or prolonged in or after March 2018, the second issue to decide is whether the Appellant is eligible for a PRDB, that is, whether he was disabled, under the CPP, before the date on which his MQP for the PRDB ended [sic], that is, on December 31, 2019. Analysis i. Severe and Prolonged [10] The severity requirement must be assessed in a real-world context.Footnote 3 This means that when deciding whether a person’s disability is severe, I must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. [11] The measure of whether a disability is “severe” is not whether the person suffers from severe impairments, but whether the disability prevents the person from earning a living. The determination of the severity of the disability is not based on the person’s inability to perform their regular job, but rather on their inability to perform any work, that is, any substantially gainful occupation.Footnote 4 [12] On August 8, 2017, Dr. Susini,Footnote 5 a family doctor, indicated in a report that he had been treating the Appellant’s tinnitus since May 2016 and that he had difficulty concentrating. [13] An August 2016 examFootnote 6 indicated permanent high frequency hearing loss. His audiogram showed normal low frequency hearing. [14] On March 19, 2018, Dr. Larivière, a psychologist,Footnote 7 indicated that the Appellant had actively participated in four individual treatment sessions for tinnitus to improve his quality of life. Unfortunately, he had raised a number of significant and difficult stress factors that aggravated his tinnitus, a condition that impairs his interpersonal and professional functioning. [15] On November 9, 2018, Dr. Richard, a psychiatrist, found that the Appellant presented traits of an obsessive-compulsive personality, along with formal thought disorder. ii. Testimony [16] The Appellant testified that he stopped working in May 2016. He was a teacher, and his work situation was difficult. For three years, following his spouse’s diagnosis of fibromyalgia, he has been responsible for the tasks at home. He explained that the tinnitus started one evening in May 2016 without reason. [17] According to the Appellant, tinnitus is not painful; his condition worsens if he is anxious. He explained that he sleeps better since he takes antidepressants; however, he still has to nap for a few hours each day around 4:00 p.m. [18] He also continues to see a psychologist once a month and a psychiatrist when he needs to renew his antidepressant prescriptions. [19] He explained that he could no longer do physical tasks. [20] He had asked his employer whether he could work from home or do something else, but his employer could not accommodate him. [21] He added that it is difficult to retrain or try another type of work with his anxiety and tinnitus. For many employers, tinnitus represents a safety risk at work. [22] He also has a lot of difficulty with his memory and concentration. iii. Residual Capacity to Work [23] The evidence on file shows that the Appellant experiences tinnitus and anxiety. [24] I have considered all the medical reports and the Appellant’s testimony and I find that, with his limitations, he could not function in the labour market. [25] I also find it unlikely that he would be able to retrain given his life experience with his physical limitations and his anxiety, as demonstrated by the evidence and his testimony. [26] Furthermore, based on the Appellant’s medical reports, his conditions have not improved. [27] Therefore, I find that the Appellant had a severe and prolonged disability in April 2016, when he stopped working. iv. Post-Retirement Disability Benefit (PRDB) [28] The PRDB provisions took effect on January 1, 2019, and provide protection to CPP retirement pension beneficiaries who become disabled on or after the date on which their retirement pension becomes payable, but who are not yet 65. However, given that I have determined that the Appellant had a severe and prolonged disability in April 2016, those provisions will not be addressed. Conclusion [29] I find that the Appellant had a severe and prolonged disability in April 2016, when he stopped working. For payment purposes, a person cannot be deemed disabled more than 15 months before the Respondent received the application for a disability pension.Footnote 8 In this case, the application was received in August 2017; therefore, the Appellant is deemed disabled since May 2016. The disability pension payments start four months after the date of disability. Therefore, payments will start as of September 2016.Footnote 9 [30] The appeal is allowed. Footnotes Footnote 1 GD2-20. Footnote 2 GD2-50. Footnote 3 Villani v Canada (Attorney General), 2001 FCA 248. Footnote 4 Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 5 GD2-44. Footnote 6 GD2-48. Footnote 7 GD2-35. Footnote 8 CPP, s 42(2)(b). Footnote 9 CPP, s 69.