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

G. R. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2019-03-29 Neutral citation 2019 SST 1735 Reference number GP-18-2630 Member Lianne Byrne Division General Division Decision Appeal dismissed Related decisions SST - G. R. v. Minister of Employment and Social Development - 2018 SST 1145 - 2018-11-13 - Appeal Division SST - G. R. v. Minister of Employment and Social Development - 2019 SST 775 - 2019-08-21 - Appeal Division Decision Content On this page Decision Overview Preliminary matters Issue(s) Analysis Conclusion Decision [1] The Claimant is not entitled to a Canada Pension Plan (CPP) disability pension. Overview [2] The Claimant worked as a labourer until August 2009, when he stopped working due to severe back pain, skin cancer and post-traumatic stress disorder. The Minister received the Claimant’s application for the disability pension on April 15, 2014. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal. [3] To qualify for a CPP disability pension, the Claimant must meet the requirements that are set out in the CPP. More specifically, the Claimant must be found disabled as defined in the CPP on or before the end of the minimum qualifying period (MQP). The calculation of the MQP is based on the Claimant’s contributions to the CPP. I find the Claimant’s MQP to be December 31, 2002. [4] However, when a claimant’s earnings and contributions are below the year’s basic exemption for that year, their earnings and contributions can be prorated if they became disabled during the prorated period. In this case, the prorated period is from January 1, 2003 to November 30, 2003. Preliminary matters [5] The Claimant confirmed at the outset of the hearing that all relevant documents have been submitted to the Tribunal and are included in the hearing file. Issue(s) [6] Did the Claimant’s conditions result in the Claimant having a severe disability, meaning incapable regularly of pursuing any substantially gainful occupation by December 31, 2002 or in 2003 by November 30, 2003? [7] If so, was the Claimant’s disability also long continued and of indefinite duration by December 31, 2002 or in 2003 by November 30, 2003? Analysis [8] Disability is defined as a physical or mental disability that is severe and prolongedFootnote 1. A person is considered to have a severe disability if 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. A person must prove on a balance of probabilities their disability meets both parts of the test, which means if the Claimant meets only one part, the Claimant does not qualify for disability benefits. Severe disability [9] I considered that 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. It’s not a question of whether a person is unable to perform their regular job, but rather the person’s inability to perform any substantially gainful workFootnote 2. [10] The Claimant acknowledged in the CPP disability questionnaire that the date upon which he could no longer work is August 1, 2009 and that he stopped working due to back pain and post-traumatic stress disorder. [11] He testified at the hearing that his back problems began in 1995 while he was working as a labourer. His duties included unloading trucks by hand, loading box cars by hand and receiving products. This was heavy, physical work, requiring him to lift 50-100 lb bags. His back problems worsened to the point that he had to stop working to attend rehabilitation and a work hardening program. He returned to work, but had a relapse in February 1999 requiring six months off from work. He was subsequently laid off in June 1999 due to new ownership. [12] In 2000, the Claimant’s brother convinced him to work as a labourer at the waterfront. The Claimant’s schedule varied depending on how many workers were needed on a given day, but stated that he “got quite a few hours in there.” His hours increased as time went on and he was “pretty busy”. His brother would often give him less physically-demanding jobs, such as sitting in a truck to watch the crane or driving work. [13] He does not know how much money he earned from 2000 to 2009. However, he found the pay to be very good, explaining that would earn $600-700 for two days of work. [14] Although he has had longstanding back pain, it is evident that he was able to continue doing this work until his brother’s tragic death at the work site on September 13, 2009. Since then, he has been suffering from post-traumatic stress disorder. He has not been back to the work site since his brother’s death. [15] The Claimant testified that most of his problems started on September 13, 2009. His pain worsened significantly and he has gone downhill since then. He now has pain in his ankles, knees, wrists, elbows, shoulders, neck and back. He has difficulty with prolonged walking, standing and sitting. He has difficulty sleeping. He has intermittent flare-ups of pain caused by simple activities, such as putting in his ear drops or getting a haircut. He requires assistance to get in and out of the bathtub. He is unable to wash dishes or do laundry. He stopped driving in approximately 2009. [16] The medical reports on file are consistent with the Claimant’s testimony. They indicate that, while the Claimant had some back pain and limitations prior to November 30, 2003, he was nonetheless able to continue working. It is not until his brother’s tragic death in September 2009 that his health problems worsened and prevented him from working. [17] The CPP Medical Report was completed on March 2, 2014 by Dr. Jalal Hosein, family physician, who reported that he has had arthritis for 20 years and post-traumatic stress disorder for four years. He also has anxiety, insomnia and melanoma. Dr. Hosein noted that his main medical condition started many years after the MQP in 2010. He was noted to have suffered severe stress after the accidental death of his brother. Since then, his nerves are bad and he has been unable to sleep or function normally. Due to the loss of his brother in 2009, he has never recovered and remains totally disabled and unable to return to work. It is therefore evident that it is not until many years after the MQP following the tragic loss of his brother that he was unable to return to work. [18] There is a post-MQP report from Dr. William D. Stanish, orthopaedic surgeon, dated October 19, 2010 in which the Claimant was noted to complain of multiple joint pain that has increased since approximately 2006 or 2007, which is after the MQP. [19] Similarly, Heather Higgins, psychologist, reported on February 24, 2011 that he has been flooded with emotions and has not worked since the death of his brother. [20] There are several reports from psychiatrist that also confirm that his mental health problems began to affect his ability to work many years after the MQP following the death of his brother. Dr. Shauna Correia, psychiatrist, reported on June 9, 2011 that he has had a drastic change in his life since the death of his brother in September 2009. He had not struggled with mood or anxiety problems prior to this and is now experiencing a total change from his baseline. He was diagnosed with post-traumatic stress disorder and alcohol dependence in sustained partial remission. Dr. Rachel Bell, resident for Dr. Kimberly White, noted that has had post-traumatic stress disorder since his brother’s death in 2009. [21] With respect to his skin cancer, Dr. P. Michael Reardon, dermatologist, reported on June 13, 2005 that he was seen numerous years ago and now has two basal cells, both of which were removed on June 27, 2005. On November 25, 2013, Dr. Reardon explained that he has a history of basal cell carcinoma. There are also post-MQP reports on file from Dr. Richard Bendor-Samuel, plastic surgeon, which indicate that he has had new lesions since the MQP with some trouble with wound healing following excisions. However, the reports from Dr. Reardon and Dr. Bendor-Samuel do not to indicate that this health condition had an impact on his ability to work prior to or as of the MQP. [22] I therefore find that the Claimant did not have a severe disability by December 31, 2002 or in 2003 by November 30, 2003. [23] I must assess the severe part of the test in a real world contextFootnote 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. In this case, in finding that the Claimant’s disability is not severe, I considered that he was 41 years old as of December 31, 2002 and 42 years old as of November 30, 2003. He has a grade nine education. He is fluent in the English language. He has worked as a truck driver and general labourer. [24] Despite the Claimant’s education level, he was relatively young as of the MQP. While I acknowledge that he was having back pain prior to the MQP, he was not precluded from working part-time as a general labourer or working in a lighter job. In fact, he worked for many years as a labourer on a part-time basis, sometimes doing lighter jobs. His schedule was determined on the basis of how many workers were needed on a particular day. He did not miss any time at work because of his health problems prior to or as of the MQP and was always hoping to increase his hours. In considering his personal characteristics, I do not find that he was unemployable in a real world context. [25] I am very sympathetic to the Claimant’s situation and understand that his health deteriorated significantly after the MQP following the tragic loss of his brother. However, I agree with the Respondent that it is irrelevant that his condition deteriorated after the MQP. The Tribunal is not empowered to exercise any form of equitable power in respect of appeals (MSD v Kendall (June 7, 2004), CP 21960 (PAB)). [26] I must assess the Claimant’s condition in its totality, which means I must consider all of the possible impairments, not just the biggest impairments or the main impairmentFootnote 4. Having considered the totality of the evidence and the cumulative effect of the Claimant’s medical conditions, I am not satisfied on the balance of probabilities that he suffers from a severe disability. Conclusion [27] The appeal is dismissed. Footnotes Footnote 1 Paragraph 42(2)(a) Canada Pension Plan Footnote 2 Klabouch v Canada (A.G.), 2008 FCA 33 Footnote 3 Villani v Canada (A.G.), 2001 FCA 248 Footnote 4 Bungay v Canada (A.G.), 2011 FCA 47