The Estate of TS v Minister of Employment and Social Development

The Estate of TS v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2021-07-16 Neutral citation 2021 SST 357 Reference number AD-21-110 Member Neil Nawaz Division Appeal Division Decision Appeal allowed Featured decisions Yes Related decisions SST - The Estate of TS v Minister of Employment and Social Development - 2021 SST 358 - 2021-01-19 - General Division Summary: IS – incapacity – mischaracterizing evidence – claimant’s activities after disability application not relevant The Claimant was severely addicted to alcohol. He lost his government analyst job due to performance issues. Then in 2005, at about the age of 49, doctors diagnosed him with alcohol-related dementia and seizures. They found he was incompetent to manage his affairs. In 2007, the provincial government’s Public Guardian and Trustee took over his financial affairs. From that point, he lived in an assisted living center. He died in January 2018 of bone cancer. The Claimant had applied for a Canada Pension Plan (CPP) disability pension in 2002, but the Minister refused it. The Public Guardian also applied for the Claimant in 2009 and 2012, but the Minister refused because it said it didn’t have enough medical evidence. Neither the Claimant nor the Public Guardian asked the Minister to reconsider those decisions. In 2017, the Public Guardian applied again for a disability pension and the Minister granted it, but only retroactive to 2016. The Claimant’s Estate asked the Minister for more retroactive benefits based on “incapacity”. Incapacity gives a claimant the chance to get more retroactive benefits dating back to the point when they stopped having capacity to apply. “Incapacity” looks at whether the claimant could not form the intention to make an application for a period, all the way (“continuously”) back from the date they actually ended up applying. The Claimant’s Estate appealed the Minister’s decision to the General Division (GD), but the GD dismissed the appeal. The Minister minimized the 2005 and 2006 medical reports about the Claimant’s cognitive impairments, arguing he had some capacity. The Minister also argued he had some capacity in 2018 – after his December 2017 application – because he consented to a will, and some medical procedures. In making its decision, the GD put a lot of weight on the facts that a psychiatrist described the Deceased’s cognitive impairments as “mild”; shortly before dying Claimant had signed a will; and he was able to consent to medical procedures. The Estate appealed the GD’s decision to the Appeal Division (AD). The Minister and the Claimant settled the appeal, which the AD approved. The Minister now argued the GD made an error of fact about the 2005 and 2006 medical reports, stating the reports said he had “significant” cognitive impairments. The Minister also now argued GD made an error of law when it looked at the Claimant’s activities in the final month of his life in January 2018; instead, the GD should have looked at the Claimant’s activities and capacity up to – but not after – his application date in December 2017. The AD accepted the parties’ settlement. The GD misread the medical evidence and understated how serious the Claimant’s cognitive impairment was. It characterized a medical report about his cognitive impairments as “mild”; instead, the report used the word “mild” to refer to an indicator of his condition. The AD granted the appeal. It found the Claimant was incapacitated dating back to 2006; this gave the Estate greater retroactive benefit payments, starting in 2005. Decision Content Citation: The Estate of TS v Minister of Employment and Social Development, 2021 SST 357 Social Security Tribunal of Canada Appeal Division Decision Appellant: The Estate of T. S. Representative: Katie Conrad Respondent: Minister of Employment and Social Development Decision under appeal: General Division decision dated January 22, 2021 GP-19- 1860 Tribunal member: Neil Nawaz Decision date: July 16, 2021 File number: AD-21-110 On this page Decision Background The claim The agreement My analysis Conclusion Decision [1] The appeal is allowed. The General Division made an error when it found that the late T. S. was not incapacitated before December 2017. His estate is therefore entitled to a disability pension as of December 2005. Background [2] The Appellant is seeking an earlier start date for the late T. S.’s Canada Pension Plan (CPP) disability pension. T. S. (who I will refer to as the Deceased) passed away on January 30, 2018 at the age of 62. R. S., the Deceased’s surviving spouse, is the trustee of his estate. The two separated in 2001. [3] The Deceased worked for many years as a systems analyst for the federal government. He was a heavy drinker, and eventually he was fired from his job because of alcohol-related performance issues. In August 2005, he was admitted to X Regional Hospital for five weeks following seizures caused by excessive alcohol consumption. In October 2006, he was involuntarily committed after a community mental health worker became concerned that he could no longer look after himself. [4] The Deceased was transferred to the X Hospital for a competency assessment. There, he was diagnosed with alcohol-related dementia. In January 2007, Ontario’s Public Guardian and Trustee (PGT) took over his affairs. Shortly afterward, he was admitted to an assisted living facility operated by the X non-profit organization. This is where he spent the rest of his life. [5] In 2009 and 2012, the PGT applied for the CPP disability pension on the Deceased’s behalf. On both occasions, the Minister denied the application at the initial level because the PGT did not provide any medical information to support a claim of disability. On neither occasion did the PGT ask the Minister to reconsider its decision. The claim [6] In December 2017, the PGT applied for the CPP disability pension for a third time. Again, the Minister refused the application for lack of medical evidence. By then, the Deceased had died of lung cancer. After R. S. became trustee of the estate, she asked the Minister to reconsider its refusal and enclosed some of her late husband’s medical records. This time, the Minister granted the Appellant the CPP disability pension but only back to January 2017, which it maintained was the maximum period allowed under the law. [7] The Appellant thought that it should have received more retroactive payments, and it appealed the pension’s start date to the Social Security Tribunal’s General Division. The General Division held a hearing by teleconference and, in a decision dated January 19, 2021, dismissed the appeal. It found insufficient evidence that the Deceased had lacked the capacity to form or express an intention to apply for a CPP disability pension before December 2017. It noted that a psychiatrist had described the Deceased’s cognitive impairments as “mild,” and it placed weight on the fact that the Deceased himself had signed a will and consented to medical procedures in the final month of his life. [8] On April 7, 2021, the Appellant requested leave to appeal from the Tribunal’s Appeal Division. In an enclosed letter, the Appellant expressed disagreement with the General Division’s decision and insisted that the Deceased was in no position to pursue government benefits after 2006. [9] In a decision dated May 7, 2021, I granted the Appellant leave to appeal because I saw an arguable case that the General Division had mischaracterized X Regional Hospital’s 2005 discharge summary; discounted Dr. Brian Baxter’s declaration of incapacity for no good reason; and failed to appreciate that the Deceased’s dementia was permanent. [10] The parties to this appeal have now asked for a decision based on a written agreement dated July 14, 2021.Footnote 1 The agreement [11] The agreement between the parties reads as follows: THE PARTIES AGREEthis appeal should be allowed on the basis that the General Division erred under subsection 58(1)(c) of the Department of Employment and Social Development Act because it based its decision on an erroneous finding of fact made without regard to the material before it when it found the medical evidence showed the deceased suffered from mild cognitive impairment. Nowhere in the medical documents is the word used in conjunction with the Deceased’s cognitive impairment. The medical report dated in 2005 states three doctors agreed the Deceased had cognitive deficits related to alcohol abuse. In 2006, the Deceased was diagnosed with alcoholism, encephalopathy and dementia. THE PARTIES AGREEthis appeal should be allowed on the basis that the General Division erred under subsection 58(1)(b) of the Department of Employment and Social Development Act. The General Division erred in law when it considered the activities of the Deceased during the month of January 2018 in order to assess his incapacity. Section 60(9) of the Canada Pension Planstipulates that an applicant must be incapable of forming or expressing an intention to make an application before the day on which the application was made. The relevant disability application was dated December 15, 2017. The General Division had to assess incapacity before that date, not after. As such, the activities from December 16, 2017 and onward are irrelevant to the assessment of incapacity. THEREFORE,under the Social Security Tribunal Regulations, SOR/2013-60, section 18, and the Department of Employment and Social Development Actsection 59(1), the parties request the Tribunal allow the appeal and give the following order that the General Division should have given based on this agreement between the parties, namely: Pursuant to sub-sections 60(8) to (10) of the Canada Pension Plan, the Appellant [sic]Footnote 2 was incapable of forming or expressing an intention to make an application as of November 2006. Pursuant to section 69 of the Canada Pension Plan, the Appellant is entitled to a disability pension commencing December 2005. My analysis [12] I accept the parties’ agreement. [13] According to the General Division, the medical evidence showed that the Deceased suffered from chronic alcoholism and “mild” cognitive impairment.Footnote 3 In support of this finding, the General Division cited a hospital discharge reportFootnote 4 written after the Deceased’s August 2005 seizure but more than a year before his affairs were taken over by the PGT. However, when I look at the report, I see that it was headed: Primary Diagnosis: Alcoholic brain damage with chronic alcoholism Secondary Diagnosis: Seizure and minor head trauma The report then outlined the Deceased’s history, concluding: He was seen by Dr. Ferri and we all recognized significant cognitive deficits related to chronic alcohol abuse. His short term and long term memory were affected. His ability to concentrate was affected and his motivation to stay away from alcohol was unclear [emphasis added]. [14] As the agreement notes, the word “mild” was not used to describe the Deceased’s cognitive impairment. In fact, the report did not use the word at all. There were roughly a dozen pages of medical records on file from 2005–06 documenting how the Deceased became a ward of the state. Only one of them contained the word “mild.” A psychiatrist used the word, but he did not use it to describe the Deceased’s overall mental condition; instead, he used it to describe just one indicator of that condition—he found evidence of “mild” disorganization. The same psychiatrist went on to say that the Deceased had “difficulty with executive functioning characterized by some trouble stringing his words together and some trouble sequencing his thoughts.”Footnote 5 [15] I am satisfied that the General Division misread the medical evidence and, in doing so, understated the seriousness of the Deceased’s cognitive impairment. Conclusion [16] The appeal is allowed. The Deceased was incapable of forming or expressing an intention to make an application as of November 2006. The Appellant, the Deceased’s estate, is therefore entitled to a CPP disability pension commencing December 2005. Footnotes Footnote 1 AD02. Footnote 2 I will assume that the parties meant “Deceased” here. Footnote 3 General Division decision, para 17. Footnote 4 X Regional Hospital discharge summary by Dr. M. Gibson, dated September 22, 2005 GD2-89. Footnote 5 X Regional Hospital consultation record by Dr. Nishka Vijay, psychiatrist, dated November 9, 2009, GD2-80.