Citation: B. C. v. Minister of Employment and Social Development, 2017 SSTGDIS 85

Tribunal File Number: GP-16-3945 BETWEEN:

B. C.

Appellant

and

Minister of Employment and Social Development

Respondent

SOCIAL SECURITY TRIBUNAL DECISION General Division – Income Security Section

DECISION BY: Carol Wilton

HEARD ON: June 13, 2017

DATE OF DECISION: June 30, 2017

REASONS AND DECISION

PERSONS IN ATTENDANCE

Appellant: B. C.

Appellant’s representative: Randy Knight

Witness: G. M. (Appellant’s friend)

Witness: P. C. (Appellant’s wife)

BACKGROUND

[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was

date stamped by the Respondent on November 19, 2010. The Respondent denied the application

initially and upon reconsideration. The Appellant appealed the reconsideration decision to the

Office of the Commissioner of Review Tribunals (OCRT), and the appeal was transferred to the

Social Security Tribunal (Tribunal) in April 2013.

[2] A member of the General Division (GD) of the Tribunal heard the appeal. In a decision

rendered on July 22, 2015, the member found that the Appellant suffered from a severe medical

condition that would preclude all gainful employment at the time of his minimum qualifying

period of December 31, 2009. Accordingly, the appeal was allowed.

[3] The Respondent requested leave to appeal from the Appeal Division (AD) on October

22, 2015, and leave to appeal was granted on December 2, 2015. In a decision dated December

5, 2016, a member of the AD allowed the appeal, finding that the GD failed to properly

consider certain medical evidence, and that the GD erred in law for failing to properly apply the

case law relating to retained work capacity. The matter was referred back to the General

Division for redetermination.

INTRODUCTION

[4] The Appellant was 44 years old on December 31, 2009, the date of the minimum

qualifying period. He has a university degree, and contributed to the CPP for some 23 years.

His last workplace was in a factory from 2000 to 2007. He sustained a workplace injury in

2003, and was sent home from work in May 2007. He stated that he could no longer work as of

May 2007 (GT1-I-108, 401). His major medical conditions are injuries to his elbows, shoulders,

and neck.

[5] The hearing of this appeal was by personal appearance for the following reasons:

• More than one party will attend the hearing.

• The method of proceeding is most appropriate to allow for multiple participants.

• The issues under appeal are complex.

• There are gaps in the information in the file and/or a need for clarification.

• This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

THE LAW

[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] There was no issue regarding the MQP because the parties agree and the Tribunal finds

that the MQP date is December 31, 2009.

[10] In this case, the Tribunal must decide if it is more likely than not that the Appellant had

a severe and prolonged disability on or before the MQP.

EVIDENCE

Overview

[11] The Appellant worked at an auto parts company and a brewery before taking a position

as a flour room operator at the Campbell Soup Company in the year 2000. This was a heavy

physical job. By July 2003, he was having significant symptoms involving his left shoulder,

neck, and both arms. In October 2003 he was put on light duties. In April 2004, Dr. J.A. Israel,

an orthopaedic surgeon, diagnosed the Appellant with soft tissue injuries and recommended

modified duties. In December 2004, Dr. T.A. Axelrod, another orthopaedic surgeon, diagnosed

him with repetitive strain injury to both shoulders, both elbows, and his neck. An X-ray of the

cervical spine in December 2003 was essentially normal, with no sign of degenerative disc

disease. In addition, EMG and nerve conduction studies in January 2004 showed no

neurological abnormalities. Dr. Axelrod recommended permanent modified duties; the

Appellant was not to do heavy lifting, use either arm repetitively, perform overhead work, or

maintain a sustained neck posture (GT1-I-176-177). In January 2006, Dr. Derick Paquette, a

family doctor, recommended that he try the medications OxyContin, Flexeril and Elavil, as well

as trigger point injections. The Appellant found a course of nerve block injections in 2006

helpful, but the Workplace Safety and Insurance Board (WSIB) discontinued funding for these

(GT1-I-116, 136- 7, 169-70, 176-7, 186). In May 2007, he was sent home from work.

[12] The Appellant participated in an upgrading program at Conestoga College from October

2007 to July 2008, but he reported high levels of pain and eventually attended school only to

hand in assignments and write tests. Nevertheless, he completed the program (GT1-I-302, 270).

He was also the primary caregiver for his one-year-old son between April 2008 and January

2009 (Questionnaire about Family Allowance payments, GT1-I-32). The Appellant participated

in a Functional Restoration Program (FRP) in October-November 2008 and a Functional

Abilities Evaluation (FAE) in November 2008. He engaged in volunteer work from June to

September 2009 (GT1-I-226). In the summer of 2009, he completed his final course in the B.A.

program at York University (GD1-I-263). The original plan had been for him to train as a social

worker at the University of Waterloo, but his grades from York were not high enough to get

into the program. The alternative, a social service worker program or a business program at

Conestoga College in Waterloo, did not offer distance education and was not considered

suitable to his limitations. Instead, the WSIB provided four weeks of job search training. In

December 2009, he completed his revised Labour Market Re-entry (LMR) plan. He was the

primary caregiver again for his young son and another son born in September 2009 between

August 2010 and at least June 2011 (GD1-I-32 and the testimony of Mrs. P. C.).

Documentary evidence

[13] In the interests of clarity, the remainder of this section will be divided as follows:

Imaging reports; Medical reports: physical condition; Medical reports: mental health condition;

CPP reports; WSIB documents; Intellectual and functional abilities; and Retraining and job

search.

Imaging reports

[14] An electrophysiological study on both arms dated April 9, 2010, showed very mild

sensory carpal tunnel syndrome in both wrists. The Appellant had complained of numbness and

tingling of both hands for six months (GT1-I-85).

[15] An MRI of the cervical spine taken on December 6, 2010, documented severe right and

moderate left foraminal stenosis at C5-C6, and moderate bilateral foraminal stenosis at C6-C7. 1 There was no myelopathy or cord compression (GT1-I-81).

1 There was some discussion at the hearing about whether this MRI was taken in June or December. The date on the imaging report was 12/6/10. On the same document, the Appellant’s date of birth is listed as 10/12/65. As the

[16] An electrophysiological study on the left upper arm taken in September 2010 was

normal. The doctor thought that the Appellant’s problem might be musculoskeletal (GD1-I-69).

[17] An MRI of the lumbar spine dated January 24, 2012, showed multilevel degenerative

disc disease. It was most pronounced at L3-L4 where there was a small left foraminal disc

bulge, narrowing the left inferior neural foramen. There was a very small diffuse disc bulge at

L4-L5, flattening the anterior thecal sac. At L5-S1, there was a small right disc herniation

abutting both S1 nerve roots, associated with a mild diffuse disc bulge extending into the

inferior aspect of both neural foramina (GT1-II-76).

[18] An X-ray of the lumbar spine taken on September 6, 2012, showed normal findings

(GD1-II-72).

Medical reports: physical condition

[19] On December 4, 2007, Cory Birk, a physiotherapist, reported to the WSIB that the

Appellant had been doing LMR for a month and had a flare-up of upper back and left arm pain.

He was also having occasional left-sided headaches. He had limited range of movement (50 per

cent) of his cervical spine in all directions, and increased tension in is bilateral thoracic

paraspinal and bilateral chest muscles. His working diagnosis was myofascial pain syndrome

(GT1-I-143).

[20] On February 14, 2008, Mr. Birk assessed the Appellant again, writing that his pain

increased with prolonged sitting or standing. His symptoms seemed to flare when sitting in

class. His symptoms had greatly improved since his class hours had been cut back (GT1-I-

142).

[21] On August 18, 2009, June Williamson, his physiotherapist, wrote that the Appellant had

tenderness and spasms in his neck and lower back depending on his activities. He had

limitations sitting, standing, walking, bending and lifting (GT1-I-91).

[22] Pharmacy records indicate that on November 9, 2009 the Appellant`s dosage of

Oxycontin was increased from 10 to 20 mg., to be taken twice a day (IS3-83).

Appellant was born in October, and assuming the dating in the document is internally consistent, it seems most likely that the date of the MRI in December 2010.

[23] Ms. Williamson assessed the Appellant on November 10, 2009. She wrote that, after

several months of treatment, his range of motion and strength in his neck and shoulders had

progressed to normal limits (GT1-I-72, 670-671).

[24] Ms. Williamson completed a physiotherapist’s Treatment Extension Request on

November 23, 2009. The working diagnosis was strain in both shoulders, the neck, and lumbar

spine. The Appellant’s neck was no longer painful, but it was stiff. His shoulders ached less.

His extension was one-third at the lumbar spine. When the patient was being treated, he

achieved “reasonable symptom management.” When treatment stopped, in spite of home

exercises, his function and symptom management deteriorated. She recommended three months

of physiotherapy, once a week (GT1-I-90).

[25] On May 13, 2010, Dr. Charles Omole, a general surgeon, examined the Appellant for

pain in his hands. The doctor noted that the Appellant complained of severe pain in the right

shoulder. He had a history of tendon repair in the left hand and laparoscopic debridement of

both knees. An EMG and nerve conduction test on April 9, 2010, showed very mild sensory

carpal tunnel syndrome bilaterally. Dr. Omole diagnosed degenerative disc disease, and mild

bilateral carpal tunnel syndrome. He referred the Appellant to the Upper Limb Clinic for his

neck and shoulders, and recommended conservative management of his wrist condition (GT1-I-

84).

[26] Ms. Williamson’s physiotherapy report dated August 30, 2010, documented a

recurrence of upper back, neck, and shoulder pain. The Appellant now also complained of

numbness and tingling in his arms. He had decreased strength and range of movement in his

cervical spine, shoulder girdle, and shoulder joints. He was not sleeping because of his

symptoms. He had a chronic syndrome (GT1-I-71).

[27] On August 30, 2010, Ms. Williamson reported that she had reassessed the Appellant on

August 5, 2010 for a severe flare in his symptoms; after eight months without treatment, the

condition of his shoulders and neck had deteriorated to pre-treatment levels. In addition, he was

now having severe numbness and tingling in his arms, and severe aching when lying on his side

or sitting for prolonged periods of time. He was compliant with a home exercise program. He

had permanent restrictions on sustained postures, lifting, carrying, pushing, and pulling. Ms.

Williamson recommended further physiotherapy (GT1-I-72 ff.).

[28] On April 14, 2011, Dr. Arif Qureshi, the Appellant’s family physician, wrote that the

patient had neck pain, and numbness in his arms only when lying down. He had been referred to

a spinal surgeon. Clinical improvement was anticipated. The Appellant had limitations on

lifting, use of his arms, and operating heavy equipment (GT1-I-68).

[29] Dr. Amanda Fortin, a plastic surgeon, saw the Appellant on April 21, 2011 for

neuropathy in both hands and more recently the legs as well. The past medical history was

“chronic pain secondary to strain injury of the arms/shoulders, lacerated extensor tendons left

hand 1993.” Dr. Fortin found no evidence of carpal tunnel syndrome, but saw some mild signs

of ulnar neuropathy at the cubital tunnel. She recommended conservative measures and wrist

splints (GD1-I-601).

[30] On June 10, 2011, Dr. Qureshi wrote to social services in the city of Stratford, stating

that the Appellant had “a chronic pain condition secondary to cervical radiculopathy and low

back pain.” He had increasing symptoms of neuropathy in both arms and hands. Looking after

his 20-month-old son aggravated his condition, and he would benefit from child care support

(AD3- 2).

[31] On January 2, 2012, Ms. Williamson wrote that in spite of treatment, the Appellant had

“ongoing impairments related to his shoulder and neck injuries, and his low back injuries.” He

had permanent restrictions, including lifting less than ten to fifteen pounds, and no lifting above

shoulder level. He also had limitations in bending. These restrictions had limited the physical

work he could perform (GT1-I-9).

[32] On January 8, 2014, Ms. Williamson wrote to Dr. Qureshi, that the Appellant continued

to attend physiotherapy twice a week for back pain, with which he might experience left-sided

sciatica. He did stretch exercises at home. His symptoms persisted in spite of treatment, and he

remained restricted in his activity tolerance. An example was that his symptoms were

significantly aggravated by using a snow blower (GT8-9).

[33] On January 21, 2014, Dr. Qureshi wrote the WSIB, stating that he did not think the

Appellant’s lower back pain was permanent; the range of motion of his lower back was

“entirely normal.” The patient thought he was better off “pain wise” on 40 mg. of Oxyneo every

12 hours, rather than 20 mg. every 12 hours. The Appellant had seen a Dr. Moammer, a spinal

surgeon, for his lower back pain in June 2013 (GT8-11).

[34] On July 11, 2014, Dr. Qureshi wrote that the Appellant suffered from a chronic pain

condition secondary to cervical radiculopathy and low back pain. His medications caused

drowsiness, and the doctor strongly supported the before-school day care program for his

children (GT8-12).

Medical reports: mental health condition

[35] In connection with the FRP in November 2008, Dr. Alireza Ebrahimian, a psychologist,

met with the Appellant, who “denied any perception of disability due to his pain and

limitations.” His psychological diagnosis was chronic pain disorder associated with both

psychological factors and a general medical condition. His symptoms of depression, however,

were in the normal range, and the conclusion was that there were no apparent psychological

barriers to further recovery or a return to work (GT1-I-96-105).

[36] Dr. Ramandeep Chahal, a psychiatrist, saw the Appellant on April 18, 2012. His major

complaint was frustration with the WSIB, which would no longer support him for his disability,

which was chronic low back pain. In spite of his pain and frustration, he continued to enjoy

computers, television, and his hobby of restoring old motorcycles. He was taking the

antidepressant Remeron, but without significant relief. He was also taking Amitryptiline for

back pain and Zopiclone for sleep. Dr. Chahal concluded that the Appellant’s symptoms were

situational and would resolve if his disability support issues were cleared up. He estimated the

Appellant’s Global Assessment of Functioning (GAF) score at 60 to 65 (mild symptoms), and

wrote that the Appellant was “cognitively intact with fair insight and judgment” (GT1-II-73-

74).

CPP reports

[37] The CPP medical report of Dr. Qureshi was received on November 19, 2010. Dr.

Qureshi had known the Appellant for 15 years, and had been treating him for the main medical

condition since 2003. The diagnosis was myofascial pain syndrome involving the left shoulder

and arm, arising from a 2003 workplace injury, and developing into chronic pain. He had a

normal range of motion in both shoulders and no deformity. His medications were OxyContin,

Voltaren, Amitriptyline, and Zopiclone. His condition was chronic (GT1-I-619-12).

[38] The Appellant’s CPP questionnaire was received on November 19, 2010. He stated that

in addition to problems with his neck and arms, he had low back pain due to inactivity caused

by his neck injury. He reported that he was able to sit, stand, and walk for a maximum of 45

minutes. He had limitations lifting, carrying, reaching, and bending. Sometimes he needed

assistance with his personal needs, such as dressing. He had trouble remembering and

concentrating. His sleep was interrupted. He could drive a car for a maximum of 45 minutes.

He had stopped all sports and woodworking activities in 2004. He used a TENS machine, back

supports, and an ergonomic chair (GT1-II-53-59).

WSIB documents

[39] The Appellant`s non-economic loss awards (NEL) were as follows:2

• March 2005 – 23 per cent for neck and both elbows;

• March 2009 – increased by six per cent to include both shoulders;

• May 2009 increased by seven per cent for neck and both elbows;

• April 2011 – increased by five per cent for both shoulders. At this point the NEL rating

was 41 per cent (GT1-I-63).

[40] The Appellant received full WSIB Loss of Earnings (LOE) benefits from April 2007 to

December 2009, and partial LOE benefits of approximately 60 per cent after December 2009

(GT1-I-63).

[41] On June 11, 2010, the WSIB wrote to the Appellant, stating that he was “considered to

be at maximum medical recovery (MMR) for his neck, shoulder, and elbow injuries.” No

further improvement was expected (IS3-150).

2 These figures did not take into account a five per cent NEL award for a hand injury in the 1990s.

[42] On February 22, 2011, a WSIB Appeals Resolution Officer (ARO) made a decision

(WSIB decision) on the Appellant’s claim for an increased NEL award and full loss of earnings

benefits. The Appellant claimed that his condition had deteriorated significantly since the last

NEL award, one that was based at least in part on a physiotherapy assessment of April 2009.

The ARO noted that the physiotherapy report of August 10, 2010, showed that there had been a

“fairly substantial deterioration” in the range of motion in the Appellant’s shoulders since May

2009, and that this represented a substantial change in objective findings that warranted

reassessment. In considering the Appellant’s LOE award, the ARO took into account the

restrictions enumerated in the FRP report, and the fact that he lived in a town about 45 minutes

from the nearest larger city. She also accepted that he experienced significant pain and had

difficulty completing the LMR program. She considered that, on the other hand, he was only 44

years old in 2009, and had a steady employment history. She concluded that although the

Appellant had the ability to work in customer service, he would continue to have difficulties in

his ability to find and maintain employment on a sustained basis. She thought, however, that it

would be realistic to expect him to work approximately 20 hours a week, and awarded him

partial loss of earnings benefits on this basis (GT1-I-586-591).

Intellectual and functional abilities

[43] Dr. Arthur Wolfgarth, a clinical psychologist, completed a psycho-vocational

assessment report on August 16, 2007. The Appellant indicated that his employer had told him

to stay home from work after May 2007 until they could get modified work sorted out.”

Objective testing indicated that the Appellant’s IQ was average, but he scored in the high

average range in perceptual organization and processing speed categories. His verbal

comprehension and working memory were average. His reading comprehension and spelling

were at a post-high school level. His learning ability was at the high average level. Dr.

Wolfgarth determined that the Appellant was a calm person who was able to deal with stress.

His conclusion was that the Appellant was a suitable candidate for further education, although

he might require educational upgrading (GD1- I-400-414).

[44] An occupational therapist and a kinesiologist performed a Functional Abilities

Evaluation (FAE) on November 19 and 20, 2008. Objective testing showed some significant

deficits in the Appellant’s range of motion in the cervical spine and the external rotation of both

shoulders.3

[45] The Appellant’s score on the Neck Disability Index showed that he perceived himself to

be severely disabled with respect to neck pain. His score on the self-report Disabilities of the

Arm, Hand and Shoulder test was 68 per cent. The Appellant reported a pain level of six out of

ten at rest, seven and a half during activity, and nine out of ten at worst. A score of six out of

ten indicated a high pain focus.

[46] The assessors found that the Appellant’s overall physical demand category rating was

light.4 They recommended that he should perform sustained, repetitive fingering and handling

tasks on an occasional basis – up to two and three-quarter hours a day - and only at a self-paced

rate. He needed to take rest and stretch breaks as required. There were no limitations on

sitting, standing, or walking. The Appellant demonstrated lifting, carrying and push/pull at a

safe working level of Light.

[47] The assessors reported in the “Limitations” category that there were positive objective

musculoskeletal finds; that the Appellant was deconditioned; that there were psychosocial

issues related to his injury and time out of work; that his perception of his abilities was below

the demonstrated physical demand levels; and that he had limited his functional performance as

a result of pain focus. The recommendations of the assessors included appropriate ergonomic

set- up for classes; a graduated return to work; the need for mini-breaks for rest and stretches;

and self-pacing of activities (GT1-I-109-122).

3 For example, flexion and rotation of the cervical spine were at about half the normal range of motion. The range of motion in his shoulders was within normal limits, except for external rotation, which was at about two-thirds of the normal level (GT1-I-649). 4 The FAE described “Light Work” as follows: “Light Work: Occasional lifting up to 201bs maximum/ or frequently exerting up to 10 lbs of force with frequent lifting &/or carrying of objects weighing up to 101bs or constantly moving objects of a negligible force / weight. Even though the weight lifted may be only a negligible amount. A job is in the light category when it requires frequent-constant walking or standing demands or when it involves sitting most of the time with a degree of pushing / pulling of arm & /or leg controls or if job demands are at a production line pace requiring the constant pushing, pulling or lifting of materials even though the weight of materials is negligible” (GT1-I-123).

[48] The Appellant was assessed for suitability for the FRP on September 12, 2008. He was

examined by Dr. K. Ibrahiem, a doctor, and Ms. K. Hewitt, an occupational therapist. His

cervical range of motion was to approximately 75 per cent on flexion, extension and bilateral

side flexion. Cervical rotation was to approximately 65 per cent bilaterally. He complained of

end range pain in his neck in all directions. The range of motion in the arm and lumbar regions

was within normal limits. The Appellant was tender on palpitation to the bilateral upper

trapezius (shoulder muscle), left greater than right (GD1-I-140).

[49] The Appellant attended a functional restoration program (FRP) in October and

November 2008. The assessors took into account the results of the recent FAE. The discharge

report indicated that in November 2008 he was able to work at a light physical demand level for

five hours a day. He was able to sit for a sustained period of an hour. He reported increased pain

with grasping, handling, and fingering activities, but demonstrated functional fine motor

capabilities. His permanent physical precautions were as follows: limited sustained or repetitive

forceful use of either arm; limited overhead work with either arm; limited sustained positioning;

and limited load handling. The Appellant’s medications on discharge were Oxycontin,

Amitriptyline, Flexeril, and Diclofenac (GT1-I-96-105).

[50] The Appellant attended a booster session of the FRP on February 25, 2009. He reported

that he slept for eight hours each day. He indicated that he was using the strategies he had been

taught in the FRP to manage his pain (GT1-I-95).

[51] According to the office notes of an agent of the WSIB, Dr. Qureshi had written in April

2011 that the Appellant’s narcotic medication “has improved ability to work, [and] do

[activities of daily living]” (GD1-I-553).

Retraining and job search

[52] In November 2007, when the Appellant was engaged in his upgrading program at

Conestoga College, he wrote to Kristy Keleher, a vocational rehabilitation consultant (VRC)

with a disability management company (Cascade). He reported that he had arrived in class late

and left early. The amount of medication he needed for pain control posed health risks to

himself and others. If his pain medication were increased, he would not be able to drive. He

stated: “when we first started this process, I was very frank with you in regards to my physical

abilities and I have endured an incredible amount of pain to this point….WSIB has it well

documented that any office type of scenario is not feasible with my permanent injuries.” He had

purchased voice-activated software. The following day, he wrote a WSIB adjudicator stating

that he had been unable to attend school that day. He did not think that the LMR program was

achievable (IS3-202-203).

[53] In July 2008, the Appellant’s LMR program was closed, based on his reported pain

levels over the prior few months, so that he could participate in a Functional Restoration

Program. The file was reactivated in April 2009 (GT1-I-305, 294).

[54] On May 8, 2009, a kinesiologist reviewed the Appellant’s home computer

arrangements. The Appellant was completing a university course online, with lectures done via

video. He had voice-activated software and therefore only had to do a limited amount of typing

(GD1-I-286-7).

[55] At a meeting with Ms. Keleher in May 2009, the Appellant stated that he was only able

to drive for about 25 minutes before becoming uncomfortable. He was not willing to entertain

the idea of studying social work at the University of Waterloo even with accommodations. He

stated a number of times that “his family is his number one priority and he needs to ensure that

he is able to take a program that allows him to have the opportunity to spend time with his

family….” 5 He did not think that he could take more than two courses at a time, even with

distance education. A kinesiologist did a full ergonomic assessment of the Appellant’s

workstation and recommended a mouse platform and a desktop slant board. The Appellant had

been given additional assistive devices during his initial LMR plan (GT1-I-282-283).

[56] In an Addendum Report, dated May 14, 2009, Ms. Keleher wrote that the Appellant’s

grades were not high enough for him to take a Bachelor of Social Work. He could, however,

5 When the Appellant was asked whether he had said this, he stated that what he told Ms. Keleher was that he did not want a repeat of the situation at Conestoga College, when it took the WSIB some time to provide accommodations for his condition. This did not make sense because the Appellant would have been studying at home via distance education with the Waterloo program, and the WSIB had already provided him with a number of assistive devices for home use. Then he said that the social work program had been presented to him as an entrée to a job where he could earn a decent living working part-time. This did not seem responsive to the question. The he said that everyone wanted to spend more time with their family, but not in the sense that it would “impede what I was doing”. The reason he was in his present situation was that he had put his job ahead of everything else. Again, this answer did not seem entirely responsive to the question.

take courses that would train him as a social service worker, a job that was suitable for the

Appellant because it fell within his restrictions. He would be able to take the course by distance

education, which would minimize the amount of driving required. In addition, a job in this field

would allow the Appellant to change positions as needed (GT1-I-296).

[57] At the end of August 2009, the Appellant reported that he was still volunteering at Big

Brothers, assisting with organizing documents and with the daily running of the agency. He was

attending for three hours a day, twice a week (GD1-I-250).

[58] At a meeting with the Appellant and the WSIB case manager on October 16, 2009, Ms.

Keleher expressed concern about the Appellant taking courses at Conestoga College because of

the travel time involved. She was also concerned because he did not think he would be able to

take more than two courses at a time, whereas the program required that he take three courses

each semester, and it had now been determined that attendance was mandatory. The VRC

additionally pointed out that the Appellant’s attendance at his upgrading program had been very

sporadic. She noted that his LMR plan had been changed many times, and “typically clients are

only eligible for one plan.” The Appellant insisted that he wanted to pursue retraining, and was

not sure that he wanted to work in a more direct entry position. Ms. Keleher noted that in the

past few months, the Appellant had been complaining of a significant increase in his pain

levels, but during this meeting he did not bring it up at all. He indicated that his medication had

been changed to keep his pain under control (GT1-I- 239-242). Further, he stated that he did not

believe the drive to Conestoga College would be a problem for him, and thought that he would

be able to participate in a full-time program because he was in a different frame of mind than he

had been in April 2009 (GD1-I-241).

[59] On December 10, 2009, Ms. Keleher, outlined the history of the Appellant’s LMR

program, and then reported that after the Appellant returned from the FRP, the WSIB case

manager did not approve further retraining, but only participation in a job search program. She

identified customer service as an appropriate career choice for him, on the basis that it would

require minimal retraining and travelling. The target wage was $13.75 an hour. He did not want

to work in this field, and planned to appeal the decision immediately (GT1-I-216-19, 227). Ms.

Keleher also reported that the Appellant had complained to his WSIB case manager in early

November that some of the jobs that the employment specialist provided to him did not pay at

least $13.67 an hour (GT1-I-227). In a meeting with the VRC on November 24, 2009, the

Appellant stated that he had applied for only three positions, the only ones that met the

minimum wage requirement that the WSIB set in his LMR plan. He refused to apply for any

positions that posted a wage lower than this (GT1-I-228).

[60] The Appellant received job search training in November and December, 2009. The

employment specialist, V. A., reported that he had missed two out of eight sessions, and had not

completed his homework on four occasions. He had been late three times. At the meeting on

November 30, 2009, he was concerned that his stutter was holding up the group, and at the next

meeting he said he felt uncomfortable with his stutter. He was given more than 100 contact

names, and according to his job search activity report submitted 28 resumes – 14 by November

13, 2009 and the remainder in December. He obtained one interview. The employment

specialist reported that the Appellant did not recognize the objectives of the job search program

and did not complete homework assignments regularly. He stated that he did not feel that he

was employable (GT1-I-222-225; IS3-12-15).

[61] Ms. Keleher met with the Appellant on November 24, 2009, to review his progress. He

mentioned that his dosage of Oxycontin had been doubled, and she noted that his speech was

badly slurred. He stated that he felt slightly disoriented because of the medication change. He

reported feeling stressed financially and emotionally, and believed that this was caused by the

WSIB. He told Ms. Keleher that he refused to apply for any position at a wage lower than

$13.67 an hour. She replied that “it is in his best interest to apply for all jobs at this time.” He

said he understood this, but would not be applying for other jobs.

[62] Ms. Keleher further wrote of an incident that occurred on November 30, 2009, in which

the employment specialist asked the Appellant to come in an hour early for a mock interview.

He replied: “If I say no then I get cut off,” so he would come in early. He also said in this e-mail

that he had difficulties communicating, which he thought was frustrating other member of the

group participating in job-search training. Ms. Keleher stated that the Appellant was not in

agreement with the approved plan and was not fully participating in all duties assigned to him

during the job search program. (GT1-I-226-230).

Job search

[63] The Appellant submitted his job search activity report for November to December 2009.

The report indicated that he had applied for 28 positions, half of them in the first two weeks of

November. Seventeen of the 28 positions were in the town of X, about ten minutes from where

he lived. According to his records sheet, the prospective employers were either not hiring, did

not follow up with him, or had work outside his restrictions. The Appellant also provided

printouts of job listings in April 2010, which he testified had been provided by Cascade (IS3-

12- 16, 34-36).

Testimony at the Hearing

Mr. G. M.

[64] Mr. G. M. is a registered nurse and hospital administrator with a staff of 80 people. He

stated that he had been the Appellant’s friend for 45 years. Although Mr. G. M. had moved to

the northern United States in about 2000, he had spoken with the Appellant approximately 10-

15 times a year, and had visited with him from time to time. During their conversations, the

Appellant had talked a lot about his pain, his medical conditions, and his dealings with the

WSIB.

[65] It was the witness’s impression that opioid medication helped the Appellant with his

pain, but left him unable to focus. Moreover, he had a sleep disorder, and would often call the

witness late at night. He had pain in his neck, shoulders, and lower back. The Appellant had

been energetic most of his life, but by 2009 he was lethargic and depressed. He was unable to

complete projects around the house, and could not move for a day after doing yard work. He

was afraid to carry the baby in 2009 because his arms were weak. It was difficult for the

Appellant to sit for a long time; the witness had seen him unable to sit for more than 15

minutes.

[66] Mr. G. M. stated that 10 mg. of Oxycontin was a high dosage, essentially the same daily

amount as surgical patients received, although the surgical patients took short-acting tablets of 5

mg. rather than long-acting ones of 10 mg. such as the Appellant used. Mr. G. M. confirmed

that the Appellant’s speech was slurred and he complained a lot about pain in early December

2009, a time the witness remembered well because of things that were going on in his own life.

Mr. G. M. was aware that the Appellant was now taking Nabilone (synthetic marijuana). In this

case, it did not provide pain control that was as effective as opioids, but the side effects were

less significant. The Appellant now had pain and a sleep disorder. In addition, chronic pain

typically leads to depression, and the Appellant suffered from this.

[67] The witness looked at the report of the MRI of the Appellant’s cervical spine and

concluded that it probably reflected a longstanding problem. He stated that surgery was not

normally done for this condition, which involved the discs, because there was no guarantee it

would work, and because it contributed to further disintegration of the discs.

[68] It was Mr. G. M.’s impression that the Appellant got only short-term relief from

physiotherapy; this treatment did not restore his function. The Appellant had seen an

orthopaedic surgeon, a Dr. Moammer, sometime after 2009, and the surgeon said that there was

nothing he could do. 6

[69] Mr. G. M. stated that he would not hire the Appellant because he cannot focus and

cannot make decisions. In addition, he could not sit for prolonged periods or do filing.

Appellant’s testimony

[70] The Appellant testified that in November 2009 he was in excruciating pain, so that he

was unable to work. When he was on medication, he was incoherent or confused. The

medication took the edge off his pain, but his cognitive function was negatively affected.

Although Ms. Williamson stated that his physical condition was improving in November 2009,

the Appellant said that this was because of his medication boost, which meant he had an

increase in his range of motion because of a decrease in pain. He further stated that his

physiotherapist’s report was “biased” because she was trying to get the WSIB to pick up the

cost of physiotherapy, so that it was not an accurate reflection of his medical condition at that

time.

[71] The Appellant was asked about the December 2010 MRI. He said that at first, his injury

was treated as a muscular one, but eventually the doctors realized that his spine and nerves were

6 There was no information from this doctor in the file.

also involved. He thought that his degenerative disc disease had been active for a considerable

period of time before December 2010.

[72] The Appellant stated a number of times that he had difficulty with his memory.

[73] In 2015, the Appellant stated, a Dr. Hasan at a pain clinic had recommended that he try

Nabilone. He had been taking synthetic marijuana since, instead of opioid medication, but was

nevertheless unable to work.

[74] The Appellant testified that physiotherapy gave him greater mobility for three to five

days, so that he could do household chores, but that the relief was temporary. Even when he

was able to do physiotherapy consistently, he did not have full function.

[75] The Appellant said the FRP was frustrating and painful. He had to do it because

otherwise he would have been cut off WSIB benefits. He was put in the FRP because he was

between academic programs and he had to be doing something to continue receiving WSIB

benefits. It had nothing to do with his pain levels. The FRP provided hardening skills rather

than coping skills. It was his opinion that there are no coping strategies for pain.

[76] The Appellant was asked about his hobby of restoring old motorcycles. He said that he

had given this up about 18 months before the hearing. He had done this for only 20 or 30

minutes at a time, and never with any consistency. It mostly involved “looking and thinking.”

[77] The Appellant was asked about his statement on the Questionnaire about Family

Allowance payments that he had been doing full-time child care from April 2008 to January

2009. It was established that he and his wife had their first child in April 2007, so that she

would normally have returned to work in April 2008. The Appellant was doubtful that he had

been the primary caregiver of his son from April 2008 to January 2009. He first said that he had

not filled out the form, although he acknowledged he had signed it. He said that his wife had

filled out the form, and she must have made a mistake. Then he said that he thought his wife

was actually home during much of this period because she developed gestational diabetes with

her first pregnancy and took more than 18 months of maternity leave.

[78] With regard to his volunteer activities, the Appellant said that he was supposed to work

with Big Brothers every day, but he wound up working twice a week. In the end, he worked two

hours a week for three months.

[79] The Appellant testified that he did not refuse to apply for jobs paying less than $13.67

an hour. He agreed with his representative’s suggestion that he was actually complaining about

the WSIB’s calculations of LOE benefits. These were calculated on the basis that he should be

earning $13.67 an hour, whereas the jobs he was applying for paid substantially less. Therefore,

his LOE benefits, reflecting the difference between his earnings at the time he left work and his

earning capacity in 2009, should have been increased. The representative suggested the problem

was that they should have been imputing wages of $8 an hour, giving him $5 an hour more.

[80] The Appellant spoke about his job search in November-December 2009. He said he was

careful about how he filled out the forms, and that he went to every one of the places he listed.

He started out looking at jobs in a wide area. As time went on and finances declined, he could

not afford the gas for jobs further afield. Also, as time went on, employers in his immediate

vicinity increasingly gave him the cold shoulder. He would be delighted to be working. He

continued looking for work after December 2009, but did not know he would have to keep

records of his job search after that. He kept looking for work until 18 months ago. He did not

know how many jobs he had applied for – “more than hundreds” - maybe 125 jobs. He did not

know whether he had applied for the jobs in the job list Cascade had provided in April 2010.

The Tribunal member did not pursue a more detailed examination of the Appellant’s job search

because of the passage of time and the Appellant’s stated difficulties with his memory.

[81] The Appellant was asked about his apparent lack of enthusiasm for the job search as

reflected in the comments of the employment specialist. He said that the WSIB would not have

continued to support him if he had not been cooperating.

[82] The Appellant testified that he became unable to work in May 2007. He was asked about

his submission that he thought he could work after that time, and that he continued to try to get

his job back with Campbell’s until it closed, which was in 2009. The Appellant explained that

what he had been trying to say was that, after he was let go from work, his status was unclear;

he was still technically an employee, but was not being paid. He was trying to keep his job to

keep his earnings.

Mrs. P. C.

[83] The Appellant’s wife testified that she was on maternity leave from April 2007 to March

2008, and from September 2009 to August 2010. She stated that she had completed the form

(Questionnaire about Family Allowance payments) indicating that the Appellant had been a

full-time caregiver for their first child from April 2008 to January 2009 and from August 2010

to February 2011 and the Appellant had signed it. To the best of her knowledge, the information

was true. She thereby acknowledged that the Appellant had been the primary caregiver of the

child/children during those periods. His wife did not indicate that the children were in day care

at that time, or that the couple had received help from family or neighbours in looking after

their children.

[84] The Appellant’s wife stated that from April 2007 to March 2008, she was working

nights. The Appellant looked after their son during the day while she slept. If the Appellant had

to be at school, she would stay up and look after the baby. If there was something he could not

handle, he would wake her up. She spent some time off work prior to the arrival of their second

child because she developed gestational diabetes during her second pregnancy. After she

returned to the workforce, however, her husband was again the primary caregiver in the family.

The children went into day care after Dr. Qureshi supported this plan in June 2011.

[85] The Appellant’s wife reported that during the period when he was doing the LMR

program, he found it hard to sit and to concentrate or work because of the pain. Physiotherapy

was only of short-term assistance. The Appellant became depressed at being unable to support

his family; there were times when she had held down three jobs to make ends meet. She agreed

that the Appellant’s concentration decreased on higher doses of Oxycontin, and that he slurred

his speech, although she was not sure how often this occurred. She stated that the Appellant

would be working if he could.

SUBMISSIONS

[86] In correspondence to the Respondent dated May 30, 2011(GT1-I-21-22)., the Appellant

submitted that he qualifies for a disability pension because:

a) The WSIB stated that he had a 40 per cent impairment, and this does not take account of his back condition;

b) The WSIB discontinued his physiotherapy in 2009, and his back condition had deteriorated afterwards, leading to a reassessment of his non-economic loss award;

c) The WSIB had pulled him out of both retraining attempts because of his physical impairments, and then sent him to a job search program before they cut him off;

d) When he told employers the truth about his limitations, they were not interested in hiring him; and

e) He was unable to do sedentary work because of his physical impairments.

[87] In submissions received on July 13, 2015 (GT8-1-3), and on April 13, 2017 (IS3-2-11),

the Appellant submitted that he was entitled to a CPP disability pension for the following

reasons:

a) He has chronic pain in his shoulders, elbows, arms, neck, left wrist, and back, as well as sciatica, as confirmed by objective evidence;

b) His NEL award for whole person permanent impairment increased from 23 per cent in March 2005 to 41 per cent in February 2011, plus five per cent for his left wrist injury;

c) His condition deteriorated between the time of the FRP report and his MQP: his Oxycodone dosage was doubled to 20 mg twice a day because of increasing pain in spite of physiotherapy;

d) He had been sent home from work in 2007 because he was taking heavy doses of opioid medication;

e) He was “washed out” of upgrading because he could not sit at a desk, and kicked out of the LMR program because he was physically incapable of completing training;

f) He was told his benefits would be cut off if he did not attend job search training;

g) He applied for many positions that paid less than $13.67 an hour, and WSIB reports to the contrary are biased;

h) Given his pain and restrictions, the Appellant could not have maintained employment in customer service either before or after his MQP; and

i) The Appellant would require a benevolent employer, which according to case law means he would not have been capable of substantially gainful employment.

[88] In submissions received on January 23, 2014 (GT2), the Respondent submitted that the

Appellant does not qualify for a disability pension because:

a) In 2004, an X-ray of the cervical spine was normal, and EMG and nerve conduction studies showed no neurological abnormalities;

b) Although there are multilevel degenerative changes in the cervical and lumbar spine, there is no indication of significant neurological deficits, and conservative treatment is recommended;

c) In April 2012, Dr. Chahal wrote that the Appellant’s mood symptoms were situational, and suggested counselling;

d) In August 2010 Ms. Williamson wrote that with treatment from April to November 2009, the range of motion and strength in the Appellant’s neck and shoulders progressed to normal limits, and his sleep impairment improved with treatment;

e) In November 2010, Dr. Qureshi wrote that the Appellant had a normal range of motion in both shoulders, and recommended conservative treatment;

f) The Appellant’s 2004 restrictions on heavy lifting, repetitive use of either arm, and no overhead work or sustained neck posture would not preclude all types of work;

g) The FAE of November 2008 and the FRP discharge summary of November 2008 indicated that the Appellant was capable of light levels of physical activity;

h) The Appellant was able to volunteer and complete a job search program in 2009; and

i) In December 2009, the WSIB considered the Appellant employable as a customer service clerk.

[89] In Addenda to the Submissions of the Minister, received on February 13, 2017 and May

9, 2015 (IS2 and IS4), the Respondent maintained that the Appellant was not entitled to a CPP

disability pension. In particular:

a) At the date of his application, the Appellant was treated conservatively with medication for pain, sleep, and depression;

b) According to Ms. Williamson, the Appellant’s condition improved in November 2009;

c) The MRI scan of December 2010 did not show any neurological deficits or cord compression;

d) In January 2014, Dr. Qureshi wrote that the Appellant’s low back pain was not permanent, and was better ;

e) In April 2014, Dr. Qureshi reported that clinical improvement was anticipated, and the limitations he cited would not have precluded all work;

f) The Appellant reported no psychological barrier on his CPP questionnaire, there was no history of psychiatric issues prior to this, and his GAF score showed only mild to moderate symptomology. The Appellant was started on an antidepressant in December 2011, after his MQP;

g) In October 2009, the Appellant was uncertain that he was willing to pursue a more direct entry level position;

h) In December 2009, the Appellant refused to apply for any position at a wage lower than $13.67 an hour, and he was not fully co-operative with the job search program;

i) In September 2010, Dr. Qureshi wrote that the Appellant’s low back pain was exacerbated by looking after his children; and

j) Although many employers were not hiring in November and December 2009, according to the Appellant’s job search records, the question is not whether it was possible to get a job, given labour market conditions, but whether the Appellant had work capacity.

ANALYSIS

[90] The Appellant must prove on a balance of probabilities that he had a severe and

prolonged disability on or before the date of the MQP.

Credibility

[91] The Appellant’s testimony was of limited assistance to the Tribunal. His answers were

sometimes off-topic, and he had difficulty with more complex questions. His evidence was

often in conflict with the medical and other evidence in his file. He mentioned more than once

that he had difficulties with his memory. In addition, his credibility was seriously called into

question by the revelation that he was acting as the primary caregiver of his young son between

April 2008 and January 2009, a fact that he denied at the hearing, but which his wife credibly

confirmed. The Tribunal notes that the Appellant was also enrolled in the LMR program

between October 2007 and July 2008, when he attributed his erratic attendance to high levels of

pain, without apparently mentioning to the WSIB his significant domestic caregiving activities.

The Tribunal did not find the Appellant’s testimony reliable.

[92] Mr. G. M.’s testimony was also of limited assistance to the Tribunal. Much of it

referenced information provided to him by the Appellant over the telephone, and was not a

result of his direct observation. In addition, as he is a nurse rather than a radiologist or an

orthopaedic surgeon, the Tribunal did not attach a great deal of weight to his observations on

the December 2010 MRI.

[93] The Appellant’s wife appeared to testify in a straightforward fashion. When she could

not remember something, she said so. The Tribunal, however, was unable to place great weight

on her testimony relating to the Appellant’s health conditions at the time of the MQP, because

of the amount of time that has passed since then, a factor that was also relevant to the testimony

of Mr. G. M. The Tribunal did find the testimony of the Appellant’s wife reliable on the subject

of the duration of her maternity leaves, which she stated were of standard length, apart from

some extra time she took off for her health condition sometime after January 2009. In addition,

she carefully reviewed the questionnaire about family allowance recipients indicating that her

husband was the primary caregiver of their son in much of 2008 to 2009 and of both children in

2010 to 2011 and confirmed its accuracy, and the Tribunal found her testimony on this issue

reliable.

Severe

Health conditions

[94] The Federal Court of Appeal has held that “claimants still must be able to demonstrate

that they suffer from a ‘serious and prolonged disability’ that renders them ‘incapable regularly

of pursuing any substantially gainful occupation.’ Medical evidence will still be needed”

(Villani v. Canada (Attorney General) 2001 FCA 248 [Villani], at para. 50). In the present case,

there is no dispute that at the time of the MQP the Appellant suffered from impairments to his

neck, shoulders, and elbows, as confirmed by several specialists and the reports of his

physiotherapist. The WSIB granted him compensation for these impairments at a level of 36 per

cent in May 2009, along with a five per cent award for a remote hand injury.

[95] In November 2008, the Appellant was diagnosed with chronic pain disorder associated

with both psychological factors and a general medical condition. In November 2010, Dr.

Qureshi diagnosed him with myofascial pain syndrome in his left shoulder and arm that had

developed into chronic pain. The Supreme Court of Canada has defined chronic pain as “pain

that persists beyond the normal healing time for the underlying injury or is disproportionate to

such injury, and whose existence is not supported by objective findings at the site of the injury

under current medical techniques.” The Court also indicated that chronic pain may be

considered a disability (Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia

(Workers’ Compensation Board) v. Laseur, 2003 SCC 54, at para.1). However, as a decision of

the Pension Appeals Board stated: “it is not sufficient for chronic pain syndrome to be found to

exist. The pain must be such as to prevent the sufferer from regularly pursuing a substantially

gainful occupation” (Minister of National Health and Welfare v. Densmore (June 2, 1993), CP

2389 (PAB), a decision that is not binding on this Tribunal, but is persuasive). The question of

the Appellant’s work capacity will be considered later in this decision. In the meantime, the

Tribunal notes that the Appellant took physiotherapy with some benefit, and reported at the

FRP booster session that he was using the strategies he had been taught in the FRP to manage

his pain, and that he was getting eight hours sleep at night.

[96] The Appellant maintained that he suffered from a number of other conditions prior to

the MQP: degenerative disc disease in his neck; CTS; low back pain; and depression. The

evidence is at best inconclusive as to the duration of his cervical degenerative disc disease; as

late as November 2010, Dr. Qureshi diagnosed myofascial pain instead.7 In addition, there is no

evidence that the Appellant had CTS prior to his MQP. Further, low back pain was rarely

mentioned in the medical evidence before December 2009, although this condition

subsequently became more serious. As far as depression was concerned, Dr. Ebrahimian wrote

in November 2008 that the Appellant’s symptoms were within the normal range and that there

were no psychological barriers to his recovery. In 2012, a psychiatrist found that his symptoms

of depression were situational, and that his GAF score was 60 to 65 (mild symptoms). The

Tribunal further notes that, prior to his MQP, the Appellant was not referred to a psychologist

7 Although Dr. Omole diagnosed this condition in May 2010, he was primarily considering the Appellant’s CTS, which he diagnosed as mild. Degenerative disc disease was not confirmed by clear objective evidence until the MRI of December 2010.

or psychiatrist for treatment, as might be expected with a severe psychological condition. The

Tribunal is not persuaded that any of these conditions was serious at the time of his MQP.

[97] The Appellant has submitted that the increase in his dosage of Oxycontin in November

2009 is evidence of the increasing severity of his medical condition. There is, however, no

medical evidence to support a finding that his condition became more serious late in 2009. In

fact, according to Ms. Williamson, the Appellant’s range of motion and strength in his neck and

shoulder had progressed to normal limits at that time.8 Perhaps the Appellant’s tolerance for

opioid medication had increased. In the absence of medical evidence to support his position,

the Tribunal is unable to find that the Appellant’s physical condition worsened significantly in

November 2009.

[98] The Appellant also claims that he was cognitively impaired because of his medication

dosage. First, he reported having been sent home from work in May 2007 when his employer

found he was taking opioid medication. The Tribunal is not persuaded, however, that a

workplace policy against narcotic use is proof that the employee was cognitively impaired. In

addition, Dr. Wolfgarth reported no concerns with the Appellant’s cognitive functioning in his

report of August 2007, as might have been expected if his medication were interfering with his

ability to complete psycho-vocational testing. Further, Dr. Ebrahimian wrote in 2008 that there

were no psychological barriers to the Appellant’s recovery. In addition, Dr. Chahal wrote in

2012 that the Appellant was “cognitively intact with fair insight and judgment.”

[99] The Federal Court of Appeal has held that it is necessary to consider an appellant’s “real

world” condition, “taking into account [his or] her entire condition, and not just the main

complaint (Bungay v. Canada (Attorney General), 2011 FCA 47, at para. 17). In the present

case, the Tribunal finds, based on neck, shoulder, and elbow pain, that the Appellant had a

serious medical condition by December 31, 2009.

Work capacity

[100] The Federal Court of Appeal has held that it is not the diagnosis of the disease, but the

Appellant’s capacity to work, that “determines the severity of the disability under the CPP” 8 The Tribunal is not persuaded by the Appellant’s explanation that the increase in his medication was responsible for better results on November 10, 2009, since had had only received his prescription for the higher dosage the day before.

(Klabouch v. Canada (Social Development), 2008 FCA 33, at para. 14). Further, where there is

evidence of work capacity, a person must show that efforts at obtaining and maintaining

employment have been unsuccessful by reason of their health condition (Inclima v. Canada

(Attorney General), 2003 FCA 117 [Inclima]). The first question, then, is whether the Appellant

had the capacity to work at the time of his MQP. Given that he did not find a job, the second

question is whether his lack of success in doing so was a result of his health condition.

[101] It is not in dispute that the Appellant had the intellectual capacity to undergo retraining

as of August 2007. At that time, he was half a credit short of a university degree, and performed

well on Dr. Wolfgarth’s psycho-vocational tests.

[102] The FRP report of November 2008, which took into account the results of the FAE,

found that the Appellant was able to work at a light physical demand level for five hours a day.

He was able to sit for an hour at a time. He did have permanent physical precautions on

sustained or repetitive forceful use of both arms, overhead work, sustained positioning, and

load handling. These restrictions would not have prevented him from undertaking all types of

work. In fact, the Appellant was the primary caregiver of his one-year-old son at that time. It

does not appear that his physical condition worsened between November 2008 and November

2009. On the contrary, his physiotherapist reported an improvement in the condition of his

shoulders and neck in November 2009.9 Although there was some deterioration in his

condition by August 2010, the physiotherapist stated that this was because he had not been

receiving treatment in the meantime. The Tribunal further observes that in February 2011,

although the Appellant’s condition had deteriorated since his MQP, the WSIB decision

indicated that he could realistically be expected to work approximately 20 hours a week.

[103] The medical evidence confirms that the Appellant was unable to do heavy physical

labour. It may also be that prolonged sitting aggravated his condition; Mr. Birk reported in

February 2008 that the Appellant’s symptoms had improved after his class hours had been

reduced. This does not mean, however, that the Appellant was incapable of all work. He was

9 The Appellant suggested at the hearing that the physiotherapist’s results of November 2009 should be disregarded because at that time she was “biased.” The Tribunal notes that the Appellant relied on the same physiotherapist’s reports in his claim for enhanced LOE and NEL benefits in February 2011. The Tribunal does not accept that the Appellant can rely on the physiotherapist’s findings when they work in his favour, and reject them when they do not.

the full-time caregiver of a one-year old child from April 2008 to January 2009, and of two

children from August 2010 to June 2011. It was not until June 2011 that Dr. Qureshi wrote that,

because of his health conditions, the Appellant would benefit from child care support, and not

until July 2014 that the doctor endorsed before-school care for the children on the grounds of

the Appellant’s health condition. The Tribunal finds that the Appellant’s ability to act as the

primary caregiver for his child/children for two quite lengthy periods between April 2008 and

June 2011 provides evidence that he had some work capacity at that time.

[104] The Appellant submitted that the WSIB had pulled him out of both retraining attempts

because of his physical impairments. At the hearing, however, he acknowledged that he had

completed the upgrading program at Conestoga College in July 2008, and that he had never

been enrolled in the social service worker diploma course. As the diploma course was not

offered by distance education, it was considered unsuitable because of his limitations.

[105] Although the Appellant testified that his volunteer work in the summer of 2009 was

limited to two hours once a week, he reported at the end of August 2009 that he was attending

for three hours a day, twice weekly. There is no indication in the file that his attendance was not

regular, and the position evidently ended on schedule. The Appellant’s volunteer work is

consistent with his having some work capacity, although it is not determinative of the issue on

this appeal. Taking all of these factors into account, the Tribunal finds that the Appellant had

some capacity to work at the time of his MQP.

Job search

[106] The question then becomes whether the Appellant’s inability to find a job was a result of

his health conditions. The Respondent has cast doubt on the diligence with which the Appellant

pursued his job search, implying that this, rather than his health conditions, was the reason he

did not find a job. The Respondent additionally submitted that a shortage of work in the

immediate vicinity of an appellant’s place of residence does not confirm a lack of work

capacity.

[107] The Tribunal notes that, even before the Appellant began his job search, his attitude to

the retraining program could be described as somewhat contrarian. In November 2007, he told

Ms. Keleher that he did not think the LMR program was achievable. As it turned out, he was

able to complete his upgrading program, with accommodations, in spite of his domestic duties.

In May 2009, he did not want to study social work via distance education, even with

accommodations, because his family was his first priority, so he did not think he could take

more than two courses at a time. When he did not qualify for the program at Waterloo, the idea

was floated of his taking a diploma program at Conestoga College. It was only when he was

told that the alternative was a job in customer service that he insisted that he wanted to undergo

retraining instead, did not believe the drive to Conestoga would be a problem, and thought he

could take a full course load.

[108] In considering the Appellant’s job search, the Tribunal observes that the Appellant

wrote that he had only taken the program because the WSIB threatened to cut off his benefits if

he did not. There is considerable evidence that the Appellant was unwilling to take the program,

although it is not clear that it assists his position in any way. First, he told the case manager and

the VRC that he was reluctant to work in customer service, and he was notably non-compliant

with the job search program. According to the employment specialist, the Appellant did not

recognize the objectives of the program and did not complete his homework. In response to a

question about this, the Appellant stated that if he had not been compliant he would not have

been allowed to remain in the program. The Tribunal does not find this argument persuasive in

view of the employment specialist’s remarks.

[109] Second, the employment specialist’s records indicate that the Appellant was not willing

to consider jobs paying less than $13.75 an hour. The Appellant’s explanation that he was really

negotiating for an alteration in the WSIB calculation of appropriate compensation does not, in

the view of the Tribunal, carry conviction in light of the clear statements of the employment

specialist. The fact that the Appellant refused to apply for certain types of work based on

perceived low wages does not assist his claim that he was regularly unable to perform

substantially gainful work. As the Federal Court stated: “… the foundation for a person’s

disentitlement to CPP disability benefits is employability in any substantially gainful

occupation. I do not agree that this involves a comparative analysis of one’s current income to

that of the past[,] and the authorities do not support such a proposition ” (Fancy v. Canada

(Social Development), 2008 FC 1414 (CanLII), at para. 13).

[110] Third, the Appellant’s job search record sheet indicates that he submitted 28 resumes in

November and December 2009. He testified that this record was a true reflection of his job

search. There is, however, contradictory evidence in the file; although his job search report

showed that he had applied for 14 jobs by November 13, 2009, he told the employment

specialist on November 24, 2009, that he had applied for only three. This calls into question the

veracity of his job search reports. There are no job search reports in the file after December

2009, and the Appellant was unable to provide specifics of additional attempts to look for work

after that.

[111] Fourth, the Appellant’s job search records indicate that many prospective employers in

his area were not hiring in the last two months of 2009. The Federal Court of Appeal has held,

however, that socio-economic factors such as labour market conditions are not relevant to a

determination of disability within the meaning of the CPP (Canada (Minister of Human

Resources Development) v. Rice, 2002 FCA 47).

[112] Taking all of the above factors into account, the Tribunal is not persuaded that the

Appellant conducted his job search in good faith, and was unable to find work prior to his MQP

because of his health conditions. Accordingly he does not meet the terms of the Inclima test for

severity.

[113] The severe criterion must be assessed in a real world context (Villani, at para. 38). This

means that when deciding whether a person’s disability is severe, the Tribunal must keep in

mind factors such as age, level of education, language proficiency, and past work and life

experience. In the present case, the Appellant was only 44 years old at the date of his MQP. He

is English- speaking and he had a university education. Dr. Wolfgarth found that his learning

ability was at the high average level. Although his previous work experience had involved

physical labour, he completed his more sedentary volunteer program in the summer of 2009

without any documentary evidence of difficulty. Further, he was the primary caregiver of his

child/children from April 2008 to January 2009, and again for many months after his MQP, a

fact that confirms the existence of some work capacity. The FAE and FRP of November 2008

found him capable of light physical work, and in February 2011, even after his condition had

deteriorated, the WSIB decision thought it was reasonable to expect him to be able to work 20

hours a week. It would appear that the Appellant’s personal characteristics would not be

detrimental to his finding a job.

[114] The onus is on the Applicant to prove, on a balance of probabilities, that his disability

was severe on or before his MQP. In the present case, the Tribunal is unable to find that he

discharged this onus.

[115] Accordingly, the Tribunal finds, on a balance of probabilities, that the Appellant’s

disability was not severe at the time of his MQP.

Prolonged

[116] Since the Tribunal found that the disability was not severe, it is not necessary to make a

finding on the prolonged criterion.

CONCLUSION

[117] The appeal is dismissed.

Carol Wilton Member, General Division - Income Security