The Estate of R. C. A. v. Minister of Human Resources and Skills Development

The Estate of R. C. A. v. Minister of Human Resources and Skills Development Collection Canada Pension Plan (CPP) disability Decision date 2014-07-04 Neutral citation 2014 SSTGDIS 17 Reference number GT-104526 Member Vikki Mitchell Division General Division Decision Appeal dismissed Decision Content On this page Decision Introduction The law Issue Evidence Submissions Analysis Conclusion Decision [1] The Tribunal finds that a Canada Pension Plan (CPP) disability pension is not payable to the Appellant. Introduction [2] The late Appellant’s application for a CPP disability pension was date stamped by the Respondent on March 17, 2008. The Respondent denied the application at the initial and reconsideration levels and the late Appellant appealed to the Office of the Commissioner of Review Tribunals (OCRT). [3] Four hearings had been scheduled in this case. The first hearing in September 2009 was postponed due to the death of the Appellant. Subsequent hearings in July 2011, April 2012 and November 2012 were adjourned. [4] The hearing of this appeal was based on the documents in the file for the reasons given in the Tribunal’s letter dated May 16, 2014. The law [5] Section 257 of the Jobs, Growth and Long-term Prosperity Act of 2012 states that appeals filed with the OCRT before April 1, 2013 and not heard by the OCRT are deemed to have been filed with the General Division of the Social Security Tribunal. [6] 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). [7] 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. [8] 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 [9] CPP, paragraph 44(2)(a): Minimum Qualifying Period Since 1998, to be eligible for CPP disability benefits a person must have made contributions in four of the last six calendar years. "Years" means whole or part years included in the contributory period. Additionally, the earnings must be above the Disability Basic Exemption (DBE), a figure which is established under the CPP. The Appellant’s Record of Earnings Summary as of August 20, 2009 showed earnings in1994, 2000, 2001 and 2003. As the Appellant’s date of application was March 17, 2008, the last 6 years in her contributory period were 2001 to 2006. To satisfy the minimum qualifying period requirements, the Appellant must have made valid contributions to the CPP in at least 4 years within the period of 2001 to 2006. She had contributions in 2001and 2003 during this period. Therefore, she did not meet the contributory eligibility requirements at the time of application. [10] CPP, section 19: Proration This section of the CPP provides that, if a person has earnings in the year that he or she is deemed to be disabled for purposes of the CPP and certain statutory requirements are met then those earnings may be prorated to extend the minimum qualifying period. The Appellant had earnings in 2006 which were considered for the purpose of this section. Section 19 of the CPP permits proration if: (i) the Appellant became disabled in 2006, and (ii) her earnings for that year were equal to or higher than the prorated year's disability basic exemption for 2006. To be eligible for disability benefits using proration, the Appellant would have to be found to be disabled within the meaning of the CPP in 2006 by the end of June [11] In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability in 2006 by the end of June. Evidence [12] The late Appellant had completed Grade 12 and 2 years of a 4 year program. She was laid off from her last employment as a store clerk after working from April until September of 2006. She had previous employment at Rivers Bar & Grill from May 1999 until October 2001 and at Teletech from December 2002 until May 2003. She stated that she could no longer work in September 2007 when her symptoms began. She had a colostomy in January 2008. [13] The late Appellant had 3 children born in December 2001, July 2003 and January 2007. [14] The Medical Report was completed in February 2008 by Dr. Stone who had known the late Appellant since 1998. She was diagnosed with an ovarian malignancy. A rectal examination revealed an obstructing tumour which resulted in a colostomy in January 2008. The ovarian malignancy was to be treated by chemotherapy. His prognosis indicated that this was a terminal condition. [15] The late Appellant stated in the CPP questionnaire that her symptoms began in September 2007. Investigative studies regarding her condition were begun in December 2007 and the malignancy was confirmed by biopsy in February 2008. [16] In July 2006 during her third pregnancy, the late Appellant had a PAP smear that was negative for intraepithelial lesion or malignancy. An obstetrical ultrasound in July 2006 was normal. Another obstetrical ultrasound in September 2006 showed anterior low lying placenta with follow-up suggested in 6-8 weeks. The Appellant gave birth vaginally on January 23, 2007. [17] On December 18, 2007 the late Appellant went to the Emergency Department at the Orillia Hospital regarding constipation and periodic vomiting. She had a follow-up appointment coming up with her family doctor and the emergency doctor suggested an abdominal and pelvic ultrasound might be useful. A CT scan and ultrasounds on December 21, 2007 showed the presence of an aggressive neoplastic mass. Another CT scan on December 27, 2007 showed the presence of at least 2 discreet masses in the pelvis. [18] The late Appellant was seen at the Odette Cancer Centre of Sunnybrook Hospital on January 7, 2008 where the doctor felt she had metastatic cancer of pelvic origin. The late Appellant had a colostomy on January 16, 2008. The late Appellant had follow-up consultations with specialists at Sunnybrook in February and March 2008 where a chemotherapy program was discussed. [19] The late Appellant was admitted to hospital in Orillia on March 25, 2008 for severe vomiting. She had not yet started chemotherapy. She was released on April 4, 2008.The last medical note from Dr. Stone on April 7, 2008 indicated a conversation with the late Appellant’s sister regarding her terminal condition. He advised that the late Appellant should push ahead with a wedding and all normal activities as soon as possible. [20] An Employer Questionnaire dated June 2012 regarding the late Appellant’s employment from April 2006 until September 2006 stated that since the late Appellant’s period of employment was a long time ago the manager could not recall any of the details. [21] Additional information in the form of letters of support from family and friends indicating that the late Appellant was not well in 2006 were provided in April and May 2012. [22] There were no new medical documents submitted relating to a severe and prolonged disability in 2006 by the end of June. Submissions [23] The Appellant’s representative submitted that the late Appellant qualified for a disability pension because: Her income in the period April 2006 to September 2006 would appear to indicate that she missed a lot of time at work. Letters of support relate that the Appellant was ill in 2006 but was trying to cope with it herself. [24] The Respondent’s written submission stated that the Appellant did not qualify for a disability pension because: A PAP smear in July 2006 was negative for malignancy. The Appellant had a normal vaginal birth in January 2007. The Appellant reported that symptoms began in September 2007. Analysis [25] The Appellant’s estate must prove on a balance of probabilities that the late Appellant had a severe and prolonged disability in 2006 by the end of June. Severe [26] The late Appellant’s Record of Earnings for 2006 shows earnings of $2128. This does indicate that she worked less than the 8 hours per day, 4 days per week from April to September as indicated in the CPP questionnaire. There is, however, nothing in the file from the late Appellant or the employer that would show that this discrepancy was caused by an inability to work due to a serious medical condition. The Tribunal cannot give weight to this argument by the late Appellant’s estate. [27] While the Tribunal recognizes that friend and family of the Appellant noted changes in the late Appellant’s health and energy levels in late 2005 and into 2006 when she was working, all the medical evidence indicates that the metastatic cancer and its debilitating symptoms began in late 2007. [28] The Tribunal finds that the Appellant’s disability did not meet the CPP definition of severe in 2006 by the end of June. Prolonged [29] A person must establish a severe and prolonged disability on or before the end of the MQP. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death. The late Appellant’s cancer resulted in her death. There is, however, no evidence to show that this disability was present in 2006 before the end of June. The Tribunal finds that the late Appellant’s disability did not meet the CPP definition of prolonged in 2006 by the end of June. Conclusion [30] Since this Appellant’s disability did not meet both criteria of severe and prolonged, the appeal is dismissed.