J. P. v. Minister of Employment and Social Development

J. P. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2019-06-14 Neutral citation 2019 SST 650 Reference number GP-18-374 Member Lianne Byrne Division General Division Decision Appeal allowed Decision Content On this page Decision Overview Issue(s) Analysis Conclusion Decision [1] The Claimant is entitled to a Canada Pension Plan (CPP) disability pension to be paid as of March 2016. Overview [2] The Claimant worked as a cleaner in a hospital. In performing her duties, she was exposed to chemicals to which she was allergic. She suffered damage to her throat along with shortness of breath, closed airways and tightness in her chest. The Minister received the Claimant’s application for the disability pension on September 28, 2016. 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, 2016. Issue(s) [4] 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, 2016? [5] If so, was the Claimant’s disability also long continued and of indefinite duration by December 31, 2016? Analysis [6] 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 The Claimant had a severe disability as of December 31, 2016. [7] I am satisfied that the evidence shows that the Claimant was incapable regularly of pursuing any substantially gainful occupation. In reaching this finding, 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 is 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. [8] I found the Claimant to be forthright, credible and sincere in her testimony. She testified that she was working full-time (7.5 hours per day, 5 days per week) from December 3, 1999 to January 9, 2013 in a hospital as a cleaner. She was able to do this work for many years without difficulty. [9] However, over time, she began to experience adverse reactions when exposed to chemicals. After work, her breathing was laboured and she could barely do anything. Her sensitivity worsened over time. Finally, testing revealed significant scar tissue in her windpipe caused by an allergy to chemicals. [10] Her employer accommodated her health problem by placing her in a different area of the hospital, where she would not have to work with harsh chemicals. However, her reactions continued to be triggered by other chemicals, including scented products worn by her co-workers. She would sometimes be left gasping for air after a co-worker walked by. She stopped working altogether on January 9, 2013. [11] At the time she stopped working, she had reached the point that she was “breathing through a straw” and spitting up blood. She had a laser and stretching procedure performed on her windpipe, which improved her breathing for two years. However, even immediately after this procedure, her breathing remained laboured. She also continued to have severe reactions to chemicals, including tingling in her tongue, blisters on the roof of her mouth, gasping for breath, tightness in her chest, and spitting up blood. She has to repeat the laser and stretching procedure whenever her conditions worsens. [12] She has been unable to return to work and has not looked for another job. She rarely leaves the safety of her home. She does not allow any scented products in her home, she removed all carpets and cleans with vinegar. She plans to move to a small town of 500-600 people because it will be safer for her. [13] She is only capable of doing light cleaning due to her laboured breathing. She has stopped playing sports, going to the gym, snowshoeing, volunteering and any other activity that requires her to be around other people or in traffic. She avoids driving due to fumes from other vehicles. She avoids going for walks in her neighbourhood because of exposure to chemicals in their homes when she walks by. [14] There are numerous medical reports on file, all of which were considered. Her family physician, Dr. Nancy Samson, completed the CPP Medical Report on October 6, 2016. Dr. Samson noted that she has subglottic/tracheal stenosis and that she develops strider and shortness of breath whenever she is exposed to cleaners or environmental triggers. [15] There are a number of medical reports on file from Dr. Nigel Duguid, respiratory medicine. On November 6, 2015, he reported that she probably has a combination of environmental intolerance syndrome and subglottic stenosis. He stated that environmental intolerance is poorly understood, but that she should test herself in different environments. [16] In his most recent report dated November 9, 2015, he reported that her symptoms are caused by a number of conditions, including inspiratory flow limitations from her airway narrowing and environmental intolerance syndrome. He felt that her conditions make it difficult for her to work. He noted that, while there may be environments free of cleaners, scents and chemicals where she could possibly work, it is simply too difficult to predict where these environments might be. He also noted that physical activities leave her short of breath because of her residual upper airway obstruction. [17] Similarly, Dr. Terry Fogwell reported on November 23, 2015 that she has been diagnosed with two overlapping problems that have both been linked to exposure in the workplace. The first is subglottic stenosis for which she required tracheal dilations with a favourable, but not complete, recovery. She continues to have inspiratory flow issues and tracheal inflammation. The second problem is environmental intolerance syndrome that results in an exacerbation of symptoms when she is exposed to strong scents, such as cleaners and perfumes. Although there is no absolute contraindication to work in an environment free of strong scents, there is no way to predict what environment may be safe and the only way to know is for her to be exposed to that environment. Dr. Fogwell went on to state that it would be helpful to know what environments do not cause her to have a reaction. [18] The Claimant testified at the hearing that she has tested herself in different environments, including in restaurants, grocery stores and other public places. She has even tried walking around in scent-free buildings, all to no avail. She stated that her symptoms come on unpredictably, even walking outside, driving in her car or when she is in a scent-free building. There is no evidence of work capacity. [19] 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 severe, I considered that she was 53 years old as of the MQP with a grade 11 education. She is fluent in the English language. She worked as a cleaner in a hospital. [20] The Minister acknowledges that the Claimant cannot return to work as a cleaner in a hospital due to exposure to chemical irritants. However, the Minister contends that she has not tried alternate work in another environment. [21] I agree that the Claimant is precluded from returning to work as a cleaner in a hospital. I also find that she cannot work in any environment that would expose her to chemicals. She is precluded from physically-demanding jobs due to her shortness of breath on exertion. She is unable to attempt alternate, lighter work due to her environmental sensitivity and the unpredictable nature of her illness. The Claimant has tested herself in various environments without success. She has had reactions in all environments she has tried. She is also not a candidate for retraining because of her environmental intolerance syndrome. I find that she is not employable in a real world context. I also find that there is no evidence of work capacity. [22] In making this finding, I considered the psychological report dated December 12, 2013 and the labour market re-entry report dated January 23, 2014 prepared by Wade Prior, psychologist. Suitable occupations were identified in this report. However, this report did not take into account that the Claimant is unable to exposure herself to the work environments listed in the report. In particular, this report suggests occupations that would clearly be challenging for her given her functional limitations and environmental intolerance, including factory work and food, beverage and tobacco processing. I do not agree that this report is evidence of work capacity. [23] 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 satisfied on a balance of probabilities that she suffers from a severe disability. Prolonged disability [24] I find that the Claimant’s disability is also prolonged. I considered Dr. Samson’s report dated October 6, 2016, which noted that her health problems began in 2010 and that her prognosis is unknown. Dr. Duguid reported on November 9, 2015 that this will be a permanent issue for her. I also accept the Claimant’s oral evidence that she suffers from shortness of breath on exertion and environmental sensitivity, which began while she was working as a cleaner and has continued over time. While it is true that her breathing improves somewhat following her laser and stretching procedures, she continues to have shortness of breath on exertion that limits her activities. I also noted that this procedure does nothing to improve her environmental sensitivity. [25] Therefore, I find that there is little likelihood of her condition improving in the foreseeable future and accept that the Claimant’s disability is long continued and of indefinite duration. Conclusion [26] The Claimant had a severe and prolonged disability in November 2015, when Dr. Duguid reported that her health problems make it difficult for her to work and that this will be a permanent issue. Payments start four months after the date of disability, as of March 2016Footnote 5. [27] The appeal is allowed. 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 Footnote 5 Section 69 Canada Pension Plan