JP v Minister of Employment and Social Development

JP v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2022-02-15 Neutral citation 2022 SST 859 Reference number GP-20-1677 Member Sharon Buchanan Division General Division Decision Appeal dismissed Related decisions SST - JP v Minister of Employment and Social Development - 2022 SST 858 - 2022-08-31 - Appeal Division Subjects CPP - Disability CPP - Disability - Severe - Functional limitations CPP - Disability - Severe - Work capacity Decision Content Citation: JP v Minister of Employment and Social Development, 2022 SST 859 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: J. P. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated October 15, 2020 (issued by Service Canada) Tribunal member: Sharon Buchanan Type of hearing: Teleconference Hearing date: January 31, 2022 Hearing participant: Decision date: February 15, 2022 File number: GP-20-1677 On this page Decision Overview What the Appellant must prove Matters I have to consider first Reasons for my decision Conclusion Decision [1] The appeal is dismissed. [2] The Appellant, J. P., 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 currently 51 years old. He worked full time from July 2016 until October 2019 as a production operator in a fish processing and packaging plant. He says that in October 2019 he was no longer able to work due to his medical condition. [4] The Appellant applied for a CPP disability pension on January 21, 2020. He fell two and half stories in 1992, breaking his heel, injuring his shoulders, and compressing his vertebrae. He now has numbness down the back of his right leg and ankle, and has constant pain. This pain and his Crohn’s disease and moderate depression mean that he cannot work. The Minister of Employment and Social Development (Minister) refused his application. [5] The Minister says the case law is clear that medical evidence is required to support a finding that a disability is severe, and the medical evidence does not support that the Appellant is disabled. The limitations identified were not so severe as to preclude any and all work activity, and he was expected to return to work. [6] The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division. What the Appellant must prove [7] For the Appellant to succeed, he must prove he has a disability that is severe and prolonged by the hearing date.Footnote 1 [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.Footnote 2 [10] This means I have to look at all of the Appellant’s medical conditions together to see what effect they have on his ability to work. I also have to look at his background (including his age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether his disability is severe. If the Appellant is able to regularly do some kind of work that he could earn a living from, then he isn’t entitled to a disability pension. [11] 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 [12] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep the Appellant out of the workforce for a long time. [13] The Appellant has to prove he has a severe and prolonged disability. He has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not he is disabled. Matters I have to consider first The Appellant wasn’t at the hearing [14] A hearing can go ahead without the Appellant if he got the notice of hearing.Footnote 4 I decided that the Appellant got the notice of this hearing. The Appellant did not participate in the first hearing that was scheduled. The hearing notice had been sent to the email address that he used to communicate with the Tribunal and in the weeks leading up to the hearing a Registry Officer left several voice mail messages reminding him of the hearing. The Appellant did not call in to the January 12, 2022 hearing. Before ending the hearing I asked a Registry Officer to try and reach the Appellant to see if he had forgotten the hearing or was having difficulty connecting to the call. They were unable to reach him. Later that same afternoon the Appellant left a voice mail message for the Registry Officer saying “I think you called my number and I wasn’t home, if you want you can call my cell phone.” He left his cell phone number. It is one of the numbers he provided as his contact information in this appeal. The Registry Officer attempted to return the call with no success. [15] I wanted to be sure that he had notice of the hearing and so I adjourned. I directed that a second hearing be scheduled and that notice of the hearing be sent by email and also by courier to the last address provided by the Appellant. On January 25, 2020 the notice of hearing for this hearing was hand delivered by courier. [16] The Registry Officer again followed up by telephone to remind the Appellant of the upcoming hearing. On January 24 and 26, 2022 the Registry Officer reached a person who was not the Appellant. This person was not authorized to speak on behalf of the Appellant. The person wanted to request a later date for hearing on behalf of the Appellant. The Registry Officer explained that only the Appellant could request the later date for hearing, and that he must do so in writing, and he must explain why he needed a later date. The letter needed to be addressed to the Tribunal. If the Appellant wanted someone else to speak on his behalf, again, that authorization needed to come from the Appellant and in writing. [17] The Appellant did not contact the Tribunal. No written request for an adjournment has been received, nor any written authorization for the Tribunal to speak with anyone other than the Appellant. The Appellant did not call in to the January 31, 2020 hearing. The new notice of hearing that was delivered by courier to the Appellant’s address explained that if the Appellant did not attend this next hearing that I might proceed and decide the appeal on the record, and that there would be no further hearing. [18] I am satisfied that the Appellant had notice of this hearing. I am satisfied that the Appellant understood that the consequence of not attending would be that this appeal might proceed on the basis of the record and there wouldn’t be another hearing. [19] So, the hearing took place when it was scheduled, but without the Appellant. Reasons for my decision [20] I find that the Appellant hasn’t proven he has a severe and prolonged disability by January 31, 2020. Is the Appellant’s disability severe? [21] The Appellant’s disability isn’t severe. I reached this finding by considering several factors. I explain these factors below. The Appellant’s functional limitations don’t affect his ability to work [22] The Appellant said that his main condition is osteoarthritis and herniated discs. He said he is also unable to work because he has Crohn’s disease and moderate depression. However, I can’t focus on the Appellant’s diagnoses.Footnote 5 Instead, I must focus on whether he has functional limitations that get in the way of him earning a living.Footnote 6 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 affect his ability to work.Footnote 7 What the Appellant says about his functional limitations [23] Although the Appellant did not appear at the hearing he did submit an application for CPP disability benefits and completed the questionnaire about how his conditions affect him. The Appellant says that medical conditions have resulted in functional limitations that affect his ability to work. He says: That his osteoarthritis and herniated discs cause numbness down the back of his right leg to his ankle, and that the pain is at a level 8 or 9 constantly. That he uses a cane when his leg goes numb and doesn’t work properly. That he can only be on his feet a short while, 2 – 3 hours, then must lay down to ease pain in his lower back. He purchased a hospital bed for firmness and so that he can get in and out of bed more easily. That the Crohn’s disease causes diarrhea and pain. That his ability most days to get down in a kneeling position and back up is poor. That he can only sit in a straight chair for 20 minutes. That he has very few “good days” as the pain is constant, that his condition has worsened over time. That thinking and concentration are affected by his depression. He ranks his ability to concentrate and focus for at least 30 minutes as poor. That he has been diagnosed with moderate depression which confines him to his home. That he is unwilling to be around other people and only leaves the house for doctor’s appointments.Footnote 8 What the medical evidence says about the Appellant’s functional limitations [24] In order to be successful the Appellant must provide medical evidence that supports what he says and that shows that his functional limitations affected his ability to work by January 31, 2022.Footnote 9 [25] The medical evidence doesn’t support what the Appellant says. [26] The Appellant says that his main medical condition is his arthritis and the damaged discs in his back. But he also says that he has Depression and Crohn’s disease, and these also prevent him from working. He provided some information about treatment, for example the name of the gastroenterologist who he has been seeing for his annual colonoscopy, and information about hospital admission for a Crohn’s flare up. He says he has blockages one or two times a year due to swelling in the colon and this can result in being hospitalized. He provided a typed list of 10 medications, some of which he identified as treatment for Crohn’s and Depression. [27] When deciding whether a person’s disability is severe I look at limitations from all of a person’s medical conditions (not just the main one) and think about how they affect his ability to work.Footnote 10 But the law says I am only able to do that if there is medical evidence about those conditions. [28] I am unable to consider the information provided by the Appellant about his Depression and Crohn’ disease. This isn’t because I don’t believe him. It is because I have no medical evidence regarding these conditions. The law is that in order to be successful there has to be medical evidence to support what the Appellant says.Footnote 11 There is no medical evidence about these conditions, and therefore I am unable to consider them. [29] With respect to the Appellant’s main medical condition, his back pain and numbness, there is medical evidence, and this evidence does support that the Appellant has some limitations and restrictions related to his back injury. I accept that the medical evidence points to a history of back problems due to the fall in 1992. However, the measure of whether the disability is severe is not whether he suffers from severe impairments, but whether the disability prevents him from earning a living.Footnote 12 The impairment’s impact is more important than its mere existence. [30] The medical evidence does not support a severe medical condition or severe limitations. The Appellant’s family physician who has treated him for his back condition since July 2014 indicates that the condition is continuous and will likely deteriorate. However his assessment of the Appellant’s functional limitations, the impact of his back condition on his ability to earn a living, does not support restrictions that are severe. The Appellant is to avoid excessive bending and climbing, lifting over 25 pounds and overhead work. [31] The Appellant’s pain has been treated with very short term trials of Cymbalta, Lyrica, Arthrotec and Elavil, and with chiropractic. The family physician reports minimal or no benefit from any of these. [32] Regarding current and future restrictions on the Appellant’s ability to work the family physician indicates that he did not recommend that the Appellant stop work and that he could return to any type of work, the sooner the better. In this regard even with the above limitations, and the observation that the Appellant had achieved minimal benefit from the prescribed pain relievers the physician assesses that the Appellant could return to his usual work.Footnote 13 [33] There are some diagnostic images, and a November 2020 letter confirming that the family physician had made a referral to a chronic pain clinic with a notation that wait times are 4 – 6 months.Footnote 14 Again, evidence of impairments, but these reports do not comment on functional limitations that the Appellant experiences as a result of his back condition. [34] The medical evidence doesn’t show that the Appellant had functional limitations that affected his ability to work by January 31, 2022. As a result, he hasn’t proven he has a severe disability. [35] When I am deciding whether a disability is severe, I usually have to consider an Appellant’s personal characteristics. [36] This allows me to realistically assess an Appellant’s ability to work.Footnote 15 [37] I don’t have to do that here because the Appellant’s functional limitations didn’t affect his ability to work by January 31, 2020. This means he didn’t prove his disability was severe by then.Footnote 16 Conclusion [38] I find that the Appellant isn’t eligible for a CPP disability pension because his disability isn’t severe. Because I have found that his disability isn’t severe, I didn’t have to consider whether it is prolonged. [39] This means the appeal is dismissed. Footnotes Footnote 1 Service Canada uses a claimant’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 Claimant’s CPP contributions are on pages GD2-41. In this case, the Claimant’s coverage period ends after the hearing date, so I have to decide whether he was disabled by the hearing date. Footnote 2 Section 42(2)(a) of the Canada Pension Plan gives this definition of severe disability. Footnote 3 Section 42(2)(a) of the Canada Pension Plan gives this definition of prolonged disability. Footnote 4 Section 12 of the Social Security Tribunal Regulations sets out this rule. Footnote 5 See Ferreira v Canada (Attorney General), 2013 FCA 81. Footnote 6 See Klabouch v Canada (Attorney General), 2008 FCA 33. Footnote 7 See Bungay v Canada (Attorney General), 2011 FCA 47. Footnote 8 See Application for CPP Disability Benefits GD2-19, and Request for Reconsideration GD2-10 Footnote 9 See Warren v Canada (Attorney General), 2008 FCA 377; and Canada (Attorney General) v Dean, 2020 FC 206. Footnote 10 See Bungay v Canada (Attorney General), 2011 FCA 47. Footnote 11 Warren v Canada (Attorney General), 2008 FCA 377 at para 4 Footnote 12 Klabouch v Canada (Attorney General), 2008 FCA 33 Footnote 13 Medical Report GD2-75 Footnote 14 Northern Shared Chronic Pain Services GD3-2 Footnote 15 See Villani v Canada (Attorney General), 2001 FCA 248. Footnote 16 See Giannaros v Minister of Social Development, 2005 FCA 187.